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CRIMINAL  SOCIOLOGY 


MODERN    CRIMINAL    SCIENCE    SERIES 

Published   under   the   auspices   of  the    American   Institute   of    Criminal    Law 

and  Criminology 

1.  Modern  Theories  of  Criminality.  By  C.  Bernaldo  de  QtJlROS,  of 
Madrid.  Translated  from  the  Second  Spanish  Edition,  by  Dr.  Alphonso  de 
Salvio,  Assistant  Professor  of  Romance  Languages  in  Northwestern  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by  W.  W, 
SmitherSj  Esq.,  of  Philadelphia,  Secretary  of  the  Comparative  Law  Bureau  of 
the  Amencan  Bar  Association. 

2.  Criminal  Psycho'ogy,  By  Hans  Gross,  Professor  of  Criminal  Law  in 
the  University  of  Graz,  Austria,  Editor  of  the  "  Archives  of  Criminal  Anthro- 
pology and  Criminalistics,"  etc.  Translated  from  the  Fourth  German  edition, 
by  Dr.  Horace  M.  Kallen,  Lecturer  in  Philosophy  in  Harvard  University. 
With  an  American  Preface  by  the  Author,  and  an  Introduction  by  Joseph 
Jastrow,  Professor  of  Psychology  in  the  University  of  Wisconsin. 

3.  Crime,  Its  Causes  and  Remedies.  By  Cesare  Lombroso,  late  Pro- 
fessor of  Psychiatry  and  Legal  Medicine  in  the  University  of  Turin,  author  of 
the  "  Criminal  Man,"  etc..  Founder  and  Editor  of  the  "  Archives  of  Psychiatry 
and  Penal  Sciences."  Translated  from  the  French  and  German  editions  by  Rev. 
Henry  P.  Horton,  M.  A.,  of  Columbia,  Mo.  With  an  Introduction  by 
Maurice  Parmelee,  Associate  Professor  of  Sociology  in  the  University  of 
Missouri. 

4.  The  Individualization  of  Punishment.  By  Raymond  Saleilles, 
Professor  of  Comparative  Law  in  the  University  of  Paris.  Translated  from  the 
Second  French  edition,  by  Mrs.  Rachael  Szold  Jastrow,  of  Madison,  Wis.  With 
an  Introduction  by  Roscoe  Pound,  Professor  of  Law  in  Harvard  University. 

5.  Criminal  Sociology.  By  Enrico  Ferri,  Member  of  the  Roman  Bar, 
and  Professor  of  Criminal  Law  and  Procedure  in  the  University  of  Rome,  Editor 
of  the  "  Archives  of  Psychiatry  and  Penal  Sciences,"  the  "  Positivist  School  in 
Penal  Theory  and  Practice,"  etc.  Translated  from  the  Fifth  Italian,  and  Second 
French  edition,  by  Joseph  I.  Kelly,  Esq.,  of  Chicago,  tormeriy  Lecturer  on 
Roman  Law  in  Northwestern  University  and  Dean  of  the  Faculty  of  Law  in  the 
University  of  Louisiana.  With  an  American  Preface  by  the  Author,  and  an  In- 
troduction by  Charles  A.  Ellwood,  Professor  of  Sociology  in  the  University 
of  Missouri. 

6.  Penal  Philosophy,  By  Gabriel  Tarde,  Late  Magistrate  in  Picardy, 
Professor  of  Modern  Philosophy  in  the  College  of  France,  and  Lecturer  in  the 
Paris  School  of  Political  Science.  Translated  from  the  Fourth  French  edition,  by 
Rapblje  Howell,  Esq.,  of  the  Bar  of  New  York  City.  With  an  Introduction 
by  Robert  H.  Gault,  Assistant  Professor  of  Psychology  in  Northwestern  Uni- 
versity, and  Managing  Editor  of  the  Journal  of  the  Institute. 

7.  Criminality  and  Economic  Conditions.  By  W.  A.  Bonder,  Doctor  in 
Law  of  the  University  of  Amsterdam.  Translated  from  the  French  by  Henry  P, 
HoRTON,  M.  A.,  of  Ithaca,  N.  Y.,  and  Victor  von  Borosini,  of  Chicago,  111. 

8.  Criminology.  By  Raffaelle  Garofalo,  former  President  of  the  Court  of 
Appeals  of  Naples.  Translated  from  the  First  Italian  and  the  Fifth  French 
edition,  by  Robert  W.  Millar,  Esq.,  of  Chicago,  Lecturer  in  Northwestern 
University  Law  School. 

9.  Crime  and  Its  Repression.  By  Gustav  Aschaffenburg,  Professor  of 
Psychiatry  in  the  Academy  of  Practical  Medicine  at  Cologne,  Editor  of  the 
*'  Monthly  Journal  of  Criminal  Psychology  and  Criminal  Law  Reform."  Trans- 
lated from  the  Second  German  edition  by  Adalbert  Albrecht,  of  South  Easton, 
Mafis. 


THE  MODERN  CRIMINAL  SCIENCE  SERIES 

Published  under  the  Auspices  of 
THE  AMERICAN  INSTITUTE  OF  CRIMINAL  LAW  AND  CRIMINOLOGY 


Criminal  Sociology 


By  ENRICO  FERRI 

Professor  of  Criminal  Law  in  the  University  of  Rome 
Deputy  in  the  Italian  Parliament,  etc. 

Translated  by 

JOSEPH  I.  KELLY 

Late  Lecturer  on  Roman  Law  in  Northwestern  University 
and 

JOHN  LISLE 

Late  Member  of  the  Philadelphia  Bar 
Edited  by 

WILLIAM  W.  SMITHERS 

Of  the  Philadelphia  Bar 

With  Introductions  by 

CHARLES  A.  ELLWOOD 

Professor  of  Sociology  in  the  University  of  Missouri 

and 

QUINCY  A.  MYERS 

Former  Chief  Justice  of  the  Supreme  Court  of  Indiana  and  former 
President  of  the  Institute  of  Criminal  Law  and  Criminology 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1917 


Copyright,  1917, 
Bt  L1TTI.E,  Bbown,  and  Cobipant. 


All  rights  reserved 


J^**)^^^ 

V'i-s-^7 


GENERAL    INTRODUCTION    TO   THE 
MODERN    CRIMINAL    SCIENCE    SERIES. 

At  the  National  Conference  of  Criminal  Law  and  Criminology, 
held  in  Chicago,  at  Northwestern  University,  in  June,  1909, 
the  American  Institute  of  Criminal  Law  and  Criminology  was 
organized;  and,  as  a  part  of  its  work,  the  following  resolution  was 
passed : 

"  Whereas,  it  is  exceedingly  desirable  that  important  treatises 
on  criminology  in  foreign  languages  be  made  readily  accessible  in 
the  English  language,  Resolved,  that  the  president  appoint  a  com- 
mittee of  five  with  power  to  select  such  treatises  as  in  their  judg- 
ment should  be  translated,  and  to  arrange  for  their  publication." 

The  Committee  appointed  under  this  Resolution  has  made  careful 
investigation  of  the  literature  of  the  subject,  and  has  consulted 
by  frequent  correspondence.  It  has  selected  several  works  from 
among  the  mass  of  material.  It  has  arranged  with  publisher,  with 
authors,  and  with  translators,  for  the  immediate  undertaking  and 
rapid  progress  of  the  task.  It  realizes  the  necessity  of  educating 
the  professions  and  the  public  by  the  wide  diffusion  of  information 
on  this  subject.  It  desires  here  to  explain  the  considerations  which 
have  moved  it  in  seeking  to  select  the  treatises  best  adapted  to  the 
purpose. 

For  the  community  at  large,  it  is  important  to  recognize  that 
criminal  science  is  a  larger  thing  than  criminal  law.  The  legal 
profession  in  particular  has  a  duty  to  familiarize  itself  with  the 
principles  of  that  science,  as  the  sole  means  for  intelligent  and 
systematic  improvement  of  the  criminal  law. 

Two  centuries  ago,  while  modern  medical  science  was  still  young, 
medical  practitioners  proceeded  upon  two  general  assumptions: 
one  as  to  the  cause  of  disease,  the  other  as  to  its  treatment.  As 
to  the  cause  of  disease,  —  disease  was  sent  by  the  inscrutable  will 
of  God.  No  man  could  fathom  that  will,  nor  its  arbitrary  opera- 
tion. As  to  the  treatment  of  disease,  there  were  believed  to  be 
a  few  remedial  agents  of  universal  efficacy.  Calomel  and  blood- 
letting, for  example,  were  two  of  the  principal  ones.     A  larger  or 


Vi  GENERAL    INTRODUCTION 

smaller  dose  of  calomel,  a  greater  or  less  quantity  of  bloodletting, 
—  this  blindly  indiscriminate  mode  of  treatment  was  regarded  as 
orthodox  for  all  common  varieties  of  ailment.  And  so  his  calomel 
pill  and  his  bloodletting  lancet  were  carried  everywhere  with  him 
by  the  doctor. 

Nowadays,  all  this  is  past,  in  medical  science.  As  to  the  causes 
of  disease,  we  know  that  they  are  facts  of  nature,  —  various,  but 
distinguishable  by  diagnosis  and  research,  and  more  or  less  capa- 
ble of  prevention  or  control  or  counter-action.  As  to  the  treat- 
ment, we  now  know  that  there  are  various  specific  modes  of  treat- 
ment for  specific  causes  or  symptoms,  and  that  the  treatment  must 
be  adapted  to  the  cause.  In  short,  the  individualization  of  disease, 
in  cause  and  in  treatment,  is  the  dominant  truth  of  modern  medical 
science. 

The  same  truth  is  now  known  about  crime;  but  the  understand- 
ing and  the  application  of  it  are  just  opening  upon  us.  The  old 
and  still  dominant  thought  is,  as  to  cause,  that  a  crime  is  caused 
by  the  inscrutable  moral  free  will  of  the  human  being,  doing  or 
not  doing  the  crime,  just  as  it  pleases;  absolutely  free  in  advance, 
at  any  moment  of  time,  to  choose  or  not  to  choose  the  criminal  act, 
and  therefore  in  itself  the  sole  and  ultimate  cause  of  crime.  As  to 
treatment,  there  still  are  just  two  traditional  measures,  used  in 
varying  doses  for  all  kinds  of  crime  and  all  kinds  of  persons,  — 
jail,  or  a  fine  (for  death  is  now  employed  in  rare  cases  only).  But 
modern  science,  here  as  in  medicine,  recognizes  that  crime  also 
(like  disease)  has  natural  causes.  It  need  not  be  asserted  for  one 
moment  that  crime  is  a  disease.  But  it  does  have  natural  causes,  — 
that  is,  circumstances  which  work  to  produce  it  in  a  given  case. 
And  as  to  treatment,  modem  science  recognizes  that  penal  or  re- 
medial treatment  cannot  possibly  be  indiscriminate  and  machine- 
like, but  must  be  adapted  to  the  causes,  and  to  the  man  as  affected 
by  those  causes.  Common  sense  and  logic  alike  require,  inevitably, 
that  the  moment  we  predicate  a  specific  cause  for  an  undesirable 
effect,  the  remedial  treatment  must  be  specifically  adapted  to  that 
cause. 

Thus  the  great  truth  of  the  present  and  the  future,  for  criminal 
science,  is  the  individualization  of  penal  treatment,  —  for  that  man, 
and  for  the  cause  of  that  man's  crime. 

Now  this  truth  opens  up  a  vast  field  for  re-exainination .  It 
means  that  we  must  study  all  the  possible  data  that  can  be  causes 
of   crime,  —  the   man's   heredity,   the   man's   physical   and   moral 


GENERAL    INTRODUCTION  vii 

make-up,  his  emotional  temperament,  the  surroundings  of  his 
youth,  his  present  home,  and  other  conditions,  —  all  the  influencing 
circumstances.  And  it  means  that  the  effect  of  different  methods 
of  treatment,  old  or  new,  for  different  kinds  of  men  and  of  causes, 
must  be  studied,  experimented,  and  compared.  Only  in  this  way 
can  accurate  knowledge  be  reached,  and  new  efficient  measures 
be  adopted. 

All  this  has  been  going  on  in  Europe  for  forty  years  past,  and  in 
limited  fields  in  this  country.  All  the  branches  of  science  that  can 
help  have  been  working,  —  anthropology,  medicine,  psychology, 
economics,  sociology,  philanthropy,  penology.  The  law  alone  has 
abstained.  The  science  of  law  is  the  one  to  be  served  by  all  this. 
But  the  public  in  general  and  the  legal  profession  in  particular 
have  remained  either  ignorant  of  the  entire  subject  or  indifferent 
to  the  entire  scientific  movement.  And  this  ignorance  or  indiffer- 
ence has  blocked  the  way  to  progress  in  administration. 

The  Institute  therefore  takes  upon  itself,  as  one  of  its  aims,  to 
inculcate  the  study  of  modern  criminal  science,  as  a  pressing  duty 
for  the  legal  profession  and  for  the  thoughtful  community  at  large. 
One  of  its  principal  modes  of  stimulating  and  aiding  this  study  is 
to  make  available  in  the  English  language  the  most  useful  treatises 
now  extant  in  the  Continental  languages.  Our  country  has  started 
late.  There  is  much  to  catch  up  with,  in  the  results  reached  else- 
where. We  shall,  to  be  sure,  profit  by  the  long  period  of  argument 
and  theorizing  and  experimentation  which  European  thinkers  and 
workers  have  passed  through.  But  to  reap  that  profit,  the  results  of 
their  experience  must  be  made  accessible  in  the  English  language. 

The  effort,  in  selecting  this  series  of  translations,  has  been  to 
choose  those  works  which  best  represent  the  various  schools  of 
thought  in  criminal  science,  the  general  results  reached,  the  points 
of  contact  or  of  controversy,  and  the  contrasts  of  method  —  having 
always  in  view  that  class  of  works  which  have  a  more  than  local 
value  and  could  best  be  serviceable  to  criminal  science  in  our  country. 
As  the  science  has  various  aspects  and  emphases  —  the  anthro- 
pological, psychological,  sociological,  legal,  statistical,  economic, 
pathological  —  due  regard  was  paid,  in  the  selection,  to  a  representa- 
tion of  all  these  aspects.  And  as  the  several  Continental  countries 
have  contributed  in  different  ways  to  these  various  aspects,  —  France, 
Germany,  Italy,  most  abundantly,  but  the  others  each  its  share,  — 
the  effort  was  made  also  to  recognize  the  different  contributions  as 
far  as  feasible. 


viii  GENERAL    INTRODUCTION 

The  selection  made  by  the  Committee,  then,  represents  its 
judgment  of  the  works  that  are  most  useful  and  most  instructive  for 
the  purpose  of  translation.  It  is  its  conviction  that  this  Series, 
when  completed,  will  furnish  the  American  student  of  criminal 
science  a  systematic  and  sufficient  acquaintance  with  the  controlling 
doctrines  and  methods  that  now  hold  the  stage  of  thought  in  Con- 
tinental Europe.  Which  of  the  various  principles  and  methods 
will  prove  best  adapted  to  help  our  problems  can  only  be  told  after 
our  students  and  workers  have  tested  them  in  our  own  experience. 
But  it  is  certain  that  we  must  first  acquaint  ourselves  with  these 
results  of  a  generation  of  European  thought. 

In  closing,  the  Committee  thinks  it  desirable  to  refer  the  mem- 
bers of  the  Institute,  for  purposes  of  further  investigation  of  the 
literature,  to  the  "  Preliminary  Bibliography  of  Modern  Criminal 
Law  and  Criminology  "  (Bulletin  No.  1  of  the  Gary  Library  of 
Law  of  Northwestern  University),  already  issued  to  members  of 
the  Conference.  The  Committee  believes  that  some  of  the  Anglo- 
American  works  listed  therein  will  be  found  useful. 

Committee  on  Translations. 
Chairman^  John  H.  Wigmore, 

Professor  of  Law  in  Northwestern  University,  Chicago. 
Ernst  Freund, 

Professor  of  Law  in  the  University  of  Chicago. 
Maurice  Parmelee, 

Professor  of  Sociology  in  the  College  of  the  City  of  New  York. 

RoscoE  Pound, 

Professor  of  Law  in  Harvard  University. 

Edward  Lindsay, 

Of  the  Warren,  Pa.,  Bar. 

Wm.  W.  Smithers, 

Secretary  of  the  Comparative  Law   Bureau   of  the    American 
Bar  Association,  Philadelphia,  Pa. 


CONTENTS 


PAGB 


General  Introduction  to  the  Modern  Criminal  Sci- 
ence Series v 

Editorial  Preface  by  William  W.  Smithebs xxi 

Introduction  by  Charles  A.  Ellwood xxvii 

Introduction  by  Quincy  A.  Myers xxxv 

Author's  Preface  to  the  American  Edition xxxix 

List  of  Abbreviations xlv 

Introduction 
THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW 

I.  The  classical  criminal  school  inaugurated  by  Beccaria.  The  classical 
penitentiary  school  inaugurated  by  Howard.  Application  of  the  posi- 
tive method  to  criminal  law,  as  in  medicine  and  poUtical  economy. 
In  Ueu  of  the  diminution  of  penalties  is  offered  the  diminution  of 
crimes,  and  instead  of  the  abstract  study  of  crime  as  a  judicial  phe- 
nomenon, the  positive  study  of  crime  as  a  natural  social  phenomenon 

is   advocated 1 

n.   First  accusations  against  the  positive  school.     The  eclectics.    Scientific 

and  practical  expansion  in  the  new  direction 1 

III.   Criminal  Sociology 1 

§  1.   Origin  of  Criminal  Sociology 1 

§  2.  The  Classical  Criminal  School  Inaugurated  by  Beccaria 2 

§  3.  The  Classical  Penitentiary  School  Inaugurated  by  Howard       ....  5 

§  4.   Beccaria  and  Howard  and  their  Limitations 5 

§  5.   The  Positive  Method 7 

§  6.   The  Positive  Method  and  the  Social  Sciences 11 

§  7.   The  AppHcation  of  the  Positive  Method  to  Criminal  Law 12 

§  8.   The  Failure  of  Classical  Criminology 14 

§  9.   The  Positive  Method  in  Political  Economy      16 

§  10.   Programme  of  the  New  School 18 

§  11.   Eclecticism      21 

§  12.   The  Third  School 22 

§  13.   The  Positive  Criminal  School  is  in  its  Third  Period 25 

§  14.  The  International  Congresses  of  Criminal  Anthropology 26 

§  15.  The  International  Union  of  Criminal  Law 33 

§  16.   Practical  Applications  of  the  Positive  School 33 

§  17.  Criminal  Sociology,  —  the  Programme      36 


X  CONTENTS 

Part  I 
DATA  OF  CRIMINAL  ANTHROPOLOGY 

Chapter  I 
NATURAL  HISTORY  OF  CRIMINAL  MAN 

The  genesis  of  the  anthropological  criminal  school.     Methods.  Value  of  data. 

Observation  of  Criminab.  paqb 

§  18.   The  Genesis  of  the  Anthropological  Criminal  School      40 

§  19.  The  Methods  of  the  Anthropological  Criminal  School 43 

§  20.   Value    of    Anthropological    Data    in    Anthropology    and    Criminal 

Sociology 45 

§  21.   Craniological  Data 48 

§  22.   Physical  Data 49 

§  23.  Criminal  Psychology;  Moral  Insensibihty  and  Lack  of  Foresight  49 

Chapter  II 

FUNDAMENTAL  OBJECTIONS  TO  THE  DATA  OP 
ANTHROPOLOGY 

Methods.  Scientific  assumption.  Disagreement  of  data.  Criminal  traits 
in  honest  men.  Historical  and  anthropological  indetermination  of 
crime.  Definition  of  crime.  The  criminal  type.  Origin  and  nature 
of  criminaUty. 

§  24.   Objections  Advanced  against  Criminal  Anthropology 52 

§  25.   Methods  Employed  in  the  Study  of  Criminals;    Small  Number  of 

Criminals  Examined 52 

§  26.   Method  Employed  in  the  Study  of  Criminals;    Inexactness  of  Com- 
parisons      55 

§  27.   Scientific  Assumptions  of  Criminal  Anthropology 57 

§  28.   Influence  of  Organic  Conditions  upon  Moral  Conduct 58 

§  29.   Sources  of  Objections  to  Anthropological  Data 60 

§  30.   QuaUtative  and  Quantitative  Disagreements  in  the  Data  of  Criminal 

Anthropology 61 

§  31.   Disagreements  in  the  Data  of  Anthropology  More  Apparent  than  Real  62 
§  32.   Miscitation  as  the  Basis  of  Criticism  of  the  Use  of  Anthropological 

Data 64 

§  33.  The  Presence  of  Criminal  Traits  in  the  Honest  and  in  the  Non- 
criminal Insane 68 

§  34.   Accumulation  of  Criminal  Traits  Necessary  to  Mark  the  Criminal .    .  69 

§  35.   Counterbalancing  of  Criminal  by  Other  Traits 69 

§  36.   Variable  Predominances  of  Parents  in  Offspring 69 

§  37.   Criminal  Traits  So  called  do  not  necessarily  Result  in  Crime       ...  70 

§  38.   Influence  of  Circumstances  in  Restraining  the  Criminal 70 

§  39.   Possibility  of  Crime  Existent  in  a  Man  of  Criminal  Traits  at  All  Ages  71 

§  40.   Apparent  Honesty  in  Face  of  Anthropological  Data  often  deceptive  71 

§  41.   Historical  and  Anthropological  Indetermination  of  Crime 73 

§  42.   Indetermination  of  Crime  not  All-inclusive      74 

§  43.   Connotation  of  Crime  Changes;  not  so  Criminality   ........  75 

$  44.   The  Social  Environment  Gives  the  Form  to  Crime  which  has  its  Base 

in  the  Biological  Factor 76 


CONTENTS  xi 

PAGE 

§45.   "Mala  Prohibita"  and  "Mala  in  Se" 77 

§  46.   Juridical  Crime  and  the  Criminal  from  a  Sociological  Point  of  View  78 

§  47.   The  Proper  Subject  of  Criminal  Anthropology 79 

§  48.   Sociological  Definition  of  Crime 80 

§  49.   Criticism  of  this  Sociological  Definition  of  Crime;   Harmless  Acts  held 

Criminal 80 

§  50.   Criticism  of    this  Sociological  Definition  of  Crime;    Inequality  of 

Penalty 81 

§  51.   Eclectic  Definition  of  Crime;  Proal 82 

§  52.   Durkheim's  Definition  of  Crime 82 

§  53.    Biological  Definition  of  Crime;  Bahar      83 

§  54.   Sociological  and  Biological  Bases  of  Crime 84 

§  55.   Distinction  between  Anti-human  and  Anti-social  Criminality      ...  85 

§  56.   The  Existence  of  an  Anthropological  Criminal  Type      86 

§  57.   Physiognomy  most  important  in  Determining  a  Criminal 87 

§  58.   Objections  to  the  Determination  of  a  Criminal  Type 88 

§  59.   Objection  based  on  the  Alleged  Development  of  the  Thief  into  the 

Murderer      91 

§  60.   Objection  that  the  Anthropological  is  a  Professional      92 

§61.   Anthropological  Criminal  Class  —  a  Restatement      95 

§  62.   Heredity  and  Environment 98 

§  63.    Criminal  Etiology      100 

§  64.   Hypotheses  as  to  Nature  and  Origin  of  Crime 100 

§  65.   Biological  Norm  or  Basis  of  Origin  and  Nature  of  Delinquency  .    .    .  102 

§  66.  Sociological  Norm  as  Basis  of  Origin  and  Nature  of  Delinquency  .  .  103 
§  67.   Biological  Abnormality  as  Organic  or  Psychic  Atavism  as  Basis  of 

Origin  and  Nature  of  Delinquency      105 

§  68.   Biological  AbnormaUty  of  Epilepsy  as  Basis  of  Origin  and  Nature  of 

Delinquency 106 

§  69.   Biological  Abnormality  of  Organic  or  Psychic  Atavism  as  Basis  of 

Origin  and  Nature  of  Delinquency      107 

§  70.   Biological   Abnormality  of   Neurosis   or   Neurasthenia  as   Basis   of 

Origin  and  Nature  of  Delinquency      108 

§  71.   Biological  AbnormaUty  or  Degeneracy  as  Basis  of  Origin  and  Nature 

of  Delinquency 109 

§  72.   Biological  Abnormality  of  Defective  Nutrition  as  Basis  of  Origin  and 

Nature  of  DeUnquency      110 

§  73.   Biological    Abnormality    of    Defective    Development    of    Inhibitive 

Centers  as  Basis  of  Origin  and  Nature  of  Delinquency 110 

§  74.   Biological  Abnormality  of  Moral  Anomaly  as  Basis  of  Origin  and 

Nature  of  Delinquency      110 

§  75.  Biological  Abnormalities  as  Basis  of  Origin  and  Nature  of  Delin- 
quency,—  Summary      Ill 

§  76.   Basis  of  Origin  and  Nature  of  Crime  Complex         115 

§  77.   Social  Abnormality  of  Economics  as  Basis  of  Origin  and  Nature  of 

Delinquency 118 

§  78.   Social  Abnormality  of  Juridical  Inadaptation  as  Basis  of  Origin  and 

Nature    of   Delinquency 119 

§  79.   Social  Abnormality  of  Complex  Social  Influences  as  Basis  of  Origin 

and  Nature  of  Delinquency 119 

§  80.   Biologico-social    Abnormality   as   Basis   of   Origin   and   Nature   of 

Delinquency 120 

§  81.   Crime  is  a  Phenomenon  of  Biologico-Social  Abnormality 122 


xii  CONTENTS 

Chapter  III 
NATURAL  CLASSIFICATION  OF  CRIMINALS 

Precedent.     Habitual   and   occasional   criminals.     Five   fundamental   cate-  paob 
gories:  insane,  bom,    habitual,  occasional,  and  by  passion.     Grada- 
tion.    Numerical    proportions.     Other    classifications.     Conclusions. 

§  82.   History  of  the  Distinction  of  Criminal  Categories  prior  to  Lombroso  125 
§  83.   Conclusions  from   History   of   Distinctions  of   Criminal   Categories 

prior  to  Lombroso      127 

§  84.  Applicability  of  Anthropological  Data  restricted  to  Certain  Categories  129 

§  85.   Statistics  of  Criminal  Relapse 129 

§  86.   Criminal  Relapse  the  Rule 180 

§  87.   Proportion  of  Recidivity  in  Crimes  against  the  Person 132 

§  88.   Proportion  of  Recidivity  in  Crimes  against  Property 133 

§  89.   Statistics  of  Relapse  Reinforce  Conclusions  of  Anthropology    ....  133 

§  90.   Larger  Percentage  of  Habitual  DeUnquency 134 

§  91.   Percentage  in  Habitual  Delinquency  between  "Assizes"  and  "Tri- 
bunals"       136 

§  92.   Five  Categories  of  Criminals 138 

§  93.   The  Criminal  Insane 139 

§  94.   The  Mattoide  and  Semi-insane  Categories 142 

§  95.   The  Born-criminal  Category 144 

§  96.   The  Habitual  Delinquent  Category 145 

§  97.   Precocity  and  Recidivity;  Traits  of  the  Habitual  Criminal  ....  146 
§  98.   Two  Objections  to  Precocity  as  a  Mark  of  the  Categories  of  Born 

and  Habitual  Criminals 150 

§  99.   Objection  to  Recidivity  as  a  Mark  of  the  Categories  of  Born  and 

Habitual  Criminals 151 

§  100.   The  Criminal  through  Passion  Category 162 

§  101.   The  Occasional  Criminal  Category 164 

§  102.   Difference  between  Categories  One  of  Degree 167 

§  103.   Application  of  Class  Division  of  Criminals 158 

§  104.   Nmnerical  Proportions  of  the  Five  Categories  of  Criminals      ....  159 

§  105.   Other  Classifications  of  Criminals 160 

§  106.   Colajanni  and  Lombroso  Accept  the  Five  Classes  of   DeUnquents  163 

§  107.   New  Basis  for  Legal  Science 164 

§  108.  Five  Classes  a  Natural  Division 164 

Part  II 
DATA  OF  CRIMINAL  STATISTICS 

Chapter  I 

METHODS  OF  COLLECTING  CRIMINAL  STATISTICS 

Moral  and  criminal  statistics.     History  and  statistics.     Natural  and  legal 

criminality. 

§  109.   Importance  of  Criminal  Statistics 168 

§110.   Method  of  Collecting  and  Studying  Criminal  Statistics 169 

§  111.   Use  and  Abuse  of  Statistics '  .    .    .  171 

§  112.   Ethico-social  Inductions  from  Criminal  Statistics 173 

§  113.   Criminal  Sociological  Demands  of  Statistics 174 


CONTENTS  xiii 

PAQB 

§  114.   Biological  Aspect  of  Criminal  Statistics 174 

§  115.   Statistics  and  History 175 

§  116.  Distinction  between  Natural  and  Legal  Crime 176 

Chapter  II 
CIVILIZATION  AND  CRIME 

Relation  between  honest  and  criminal  activity.     Anthropological,  physical, 

and  social  factors  of  crime. 

§  117.   Evolution  of  Crime.     Pathological  Incidents  of  Civilization     ....  178 

§  118.   Evolution  of  Crime  in  Civilization 178 

§  119.   Evolution  of  Crime 180 

§  120.   Crime  and  Education 181 

§  121.   Crime  and  Ease  of  Conditions  of  Life 181 

§  122.   Numerical  Increase  in  Crime  shown  by  Statistics 182 

§  123.   Actual  Increase  in  Crime 185 

§  124.   Anthropological   Factors   in   Crime;     Organic   Constitution   of   the 

Criminals 186 

§  125.   Anthropological  Factors  in  Crime;    Psychical  Constitution  of  the 

Criminal 186 

§  126.   Anthropological  Factors  in  Crime;    Personal  Characteristics  of  the 

Criminals 187 

§  127.   Physical  Factors  in  Crime 187 

§  128.   Social  Factors  in  Crime 187 

§  129.   Classifications  of  the  Factors  in  Crime      187 

§  130.   Ratio  of  Civil  and  Penal  Justice 188 

§  131.   Criticism  of  Colajanni's  Classification  of  Crime 189 

§  132.   Criticism  of  Aramburn's  Classification  of  Crime 190 

§  133.   Criticism  of  Tarde's  Classification 191 

§  134.   Complexity  of  Origin  of  Crime 192 

§  135.   Ratio  of  Productivity  of  Different  Factors  in  Crime      192 

Chapter  III 
PERIODIC  MOVEMENT  OF  CRIME 
General  data  on  periodical  movement  of  crime  in  Eiurope. 

§  136.   The  Periodical  Movement  of  Crime       195 

§  137.   Crime  as  Denounced 196 

§  138.   Periodical  Growth  of  Crime 197 

§  139.   Permanent  Increase  in  Crime      198 

§  140.   Increase  of  Crime;  Classicism  and  Positivism 199 

§  141.   Comparative  Tables       200 

§  142.   Increase  in  Contraventions  and  Increase  in  More  Serious  Crimes    .    .  202 

§  143.   Increase  in  Population  a  Factor  in  the  Increase  of  Crime      206 

Chapter  IV 

LAW  OF  CRIMINAL  SATURATION 

Law  of  criminal  saturation.     Slight  efficiency  of  punishment;    historical, 
statistical,  and  psychological  proofs. 

§  144.   Law  of  Criminal  Saturation 209 

§  145.   Annual  Criminal  Variations 209 

§  146.   Reflex  and  Complementary  Crime 211 


xiv  CONTENTS 

FAOa 

§  147.  Criminal  Supersaturation 211 

§  148.   Criminal  Supersaturation  and  Regularity  of  Crime 212 

§  149.   Criminal  Supersaturation  and  Punishment       214 

§  150.   Legislative  Repression  and  the  Increase  in  Crime 216 

§  151.  Judicial  Repression  and  the  Increase  in  Crime 217 

§  152.   Severity  and  Leniency  in  Judicial  Repression      218 

§  153.   Unpunished  Crimes  as  a  Cause  of  Increase  in  Crime      221 

§  154.   Prevention  of  Crime,  not  Punishment  for  Crime  Needed 225 

§  155.  Three  Sociological  Strata  of  Delinquents      226 

§  156.   Punishment  as  a  Preventative  and  the  Three  Classes  of  Criminals  228 

§  157.   Prevention  the  Object  of  Criminal  Laws 230 

§  158.   History  of  Punishment 281 

§  159.   Exceptional  Penalties  and  Repression 283 

§  160.   Distinction  of  Fear  of  Punishment  and  Repressive  Penalties    ....  236 

§  161.   Repressive  Force  of  Penalties:  a  Summary 236 

§  162.   Moral  Prevention  of  Crime 239 

§  163.   Punishment  is  a  Negative  Repressive  Force 240 

Chapteb  V 
EQUIVALENTS  FOR  PUNISHMENT 

Equivalents  for  punishment.  Examples  in  the  economic,  political,  scientific, 
administrative,  reUgious,  family,  and  educational  orders.  Alcoholism. 
Vagabondage.     Abandoned  infancy. 

§  164.   Need  of  Other  Means  of  Social  Protection  than  Punishment    ....  242 

§  165.   Penalties.    Substitutes 243 

§  166.   Penal  Substitutes 246 

§  167.   Penal  Substitutes.     Economic  Order.     Freedom  of  Emigration  .    .    .  247 

§  168.   Penal  Substitutes.     Economic  Order.     Taxation 247 

§  169.   Penal  Substitutes.     Economic  Order.     Public  Works 248 

§  170.   Penal  Substitutes.     Relation  of  Alcohol  to  Crime 248 

§  171.   Physical  and  Psycho-pathogenic  Influence  of  Alcohol 252 

§  172.   Alcoholism  and  Drunkenness 258 

§  173.   Penal  Substitutes.     Social  Order.     Poverty  and  Fatigue 254 

§  174.   Repressive  Remedies 255 

§  175.   Relation  of  Alcoholism  and  Crime.     Fiscal  Remedies 255 

§  176.   Relation  of  Alcoholism  and  Crime.     Remedies  of  Regulation  ....  256 

§  177.   Relation  of  Alcoholism  and  Crime.     Psychological  Remedies  ....  257 

§  178.   Relation  of  Alcoholism  and  Crime.     Therapeutic  Remedies     ....  257 

§  179.   Penal  Substitutes.     Economic  Orders  in  General 258 

§  180.   Vagabondage  and  Crime      261 

§  181.   Penal  Substitutes.     Economic  Order.     Conclusion 264 

§  182.   Penal  Substitutes.     Political  Order 264 

§  183.   Penal  Substitutes.     Scientific  Order 266 

§  184.   Penal  Substitutes.     Civil  and  Administrative  Order 267 

§  185.   Penal  Substitutes.     Religious  Order      271 

§  186.  Penal  Substitutes.     Family  Order 272 

§  187.   Penal  Substitutes.     Educational  Order 272 

§  188.  Penal  Substitutes,    N^lected  Children 274 


CONTENTS  XV 

Chapter  VT 

PREVENTION  AND  REPRESSION 

Fundamental   identity   of   prevention   and   repression.     The   fight   against 

crime  and  its  radical  transformation.  page 

§  189.   Social  Prevention  more  effective  than  Penal  Laws 278 

§  190.   Inevitability  of  Social  Friction.     Crime  Unavoidable 280 

§  191.   Penal  Substitutes.     A  General  Argument 281 

§  192.  The  Importance  of  the  Theory  of  Penal  Substitutes 282 

§  193.   Prevention  of  Crime  a  Duty  for  the  Criminologist 283 

§  194.   No  Science  of  Criminal  Prevention 283 

§  195.   Crime  is  Pathological.     Need  of  Prevention 285 

Part  III 
POSITIVE   THEORY  OF   PENAL  RESPONSIBILITY 

Chapter  I 

THE  NEGATION  OF  THE  FREE  WILL 

Postulate  of  the  Classical  School  denied  by  positivist  physio-psychology; 
and  in  any  event  disputable  in  theory  and  dangerous  in  practice.  The 
negation  of  free  will.     Eclectic  compromise  on  moral  liberty. 

§  196.   Problem  of  Penal  Responsibility 288 

§  197.   Basis  of  the  Right  of  Punishment 289 

§  198.   Moral  Liberty 289 

§  199.   Process  of  Action 290 

§  200.   Moral  Liberty  an  Impossibility 292 

§  201.    Indivisibility  of  the  Human  Mind 295 

§  202.   No  Free  Will  Because  Will  in  not  an  Entity 296 

§  203.  Statistics  Prove  that  There  is  No  Free  Will 297 

§  204.   No  Limited  Freedom  of  Will 297 

§  205.   Free  Will  is  Denied  by  Science 298 

§  206.   Equivocal  Meanings  of  Moral  Liberty 299 

§  207.   Examples  of  Equivocal  Meaning  of  Liberty 301 

§  208.   Denial  of  Free  Will  is  not  Fatalistic 303 

§  209.   Limited  Moral  Freedon;   Conclusion 303 

§  210.   Limited  Moral  Freedom  Important  to  Sustain  Criminal  Law  ....  305 

§  211.  Theory  of  Limited  Moral  Freedom  in  Practical  Jurisprudence  ....  307 

Chapter  H 

THE  PROBLEM  OF  PENAL  JUSTICE  WITH  THE  DENIAL 
OF  FREEWILL 

Natiu-al  defensive  reaction.  Present  reaction.  Ethnical  character  of  retribu- 
tive justice  eliminated  from  the  defensive  function.  Freedom  of  this 
function  from  criteria  of  liberty  and  moral  defects. 

§  212.   Penal  Law  Denying  Moral  Liberty 308 

§  213.   Basis  of  Responsibility 309 

§  214.   Need  of  History  to  determine  Basis  of  Responsibility 310 

§  215.   Evolution  of  Defensive  Reaction 311 

§  216.   Identity  of  Military  and  Legal  Reaction 813 


xvi  CONTENTS 

PAoa 

§  217.  Penal  Lack  of  Recognition  of  Morality  of  Act 316 

S  218.   Evolutionary  Phases  of  Law 317 

S  219.   The  Last  Evolutionary  Phase  of  Law;  the  Social  Phase 318 

§  220.   Development  of  Penal  Law  toward  the  Defensive      820 

§  221.  Penal  Function  defensive  and  unconnected  with  Conditions  of  Moral 

Liberty 321 

Chapteb  III 

OBJECTIONS  TO  NEGATION  OF  FREE  WILL 

The  penalty  (after  the  fact)  is  not  a  defense  (before  the  fact).  Social  defense 
is  not  legal  defense.  Positive  origin  of  law  in  its  individual  and  social 
aspect.  Social  defense  and  class  defense  in  penal  law.  Atavic  and 
evolutionary  criminality. 

§  222.   Objections  to  Theory  of  Defensive  Penal  Justice 322 

§  223.    (A)  Objections  to  Theory  of  Defensive  Penal  Justice:    Reparation 

not  Defense 823 

§  224.   (B)  Objections  to  Theory  of  Defensive  Penal  Justice:    Social  Pro- 
tection    325 

§  225.   Same  Subject:    Conditions  of  Existence 330 

§  226.   (C)  Objections    to   Theory   of   Defensive   Law:     Influence    of    the 

Dominant  Class 333 

§  227.   Scientific  Socialism 334 

§  228.  Two  Forms  of  Criminality 335 

§  229.   Distinction  between  Two  Forms  of  Criminality      336 

Chapteb  IV 

PRESENT  FORMS  OF  DEFENSIVE  REACTION 

Theory  of  natural  sanction.     Physical,  biological,  social.     Man  is  responsible 
for  his  acts,  because  he  lives  in  society 

§  230.   Punishment  not  Based  on  Moral  Responsibility      339 

§  231.   Punishment  Requires  Physical  Imputability 339 

§  232.   Legal  Responsibility 340 

§  233.   Objection  that  New  Penology  is  Not  Based  on  Right 341 

§  234.   Positivlstic  Basis  of  Penal  Law 342 

§  235.   Physical,  Biological,  and  Social  Sanctions 343 

§  236.   Kinds  of  Social  Sanctions:  Coercive 344 

§  237.  The  Essential  Quality  Common  to  All  Forms  of  Social  Sanction     .    .  345 
§  238.  The  Essential  Quahty  Common  to  all  Forms  of  Remimerative  Social 

Sanction 345 

§  239.  Social  Sanction  and  Crime 345 

§  240.   Moral  CulpabiUty  must  be  Discarded  as  a  Prerequisite  in  Crime    .    .  347 

§  241.   Social  Selection 349 

§  242.   Moral  Culpability  an  Impossible  Basis  for  Defense  of  Society     .    .    .  351 

§  243.   Social  Accountability  in  Place  of  Moral  Responsibility 352 

§  244.   Public  Opinion  and  Social  Defense 856 

§  245.   History  of  Treatment  of  Insanity 356 

§  246.   Moral  Insanity 359 

§  247.   Basis  of  Right  to  Punish      360 

§  248.   Imputability  and  Responsibility 362 


CONTENTS  xvii 

Chapteb  V 

ECLECTIC  THEORIES  OF  RESPONSIBILITY 

Relative  freedom  of  will;    limited,  ideal,  practical.     Liberty  of  intelligence. 
Voluntariness.     Intimidability.     Normality.     Personal   identity   and 

social  resemblance.     State  of  criminality.     Conclusion.  paqb 

§  249.   Necessity  and  Free  Will 364 

§  250.  Development  of  Rights 366 

§  251.   Eclectic  Theories  of  Punishability 366 

§  252.   Eclectic  Theories  of  Responsibility,   Limited  Relation,   Liberty  of 

the  Will      367 

§  253.   Eclectic  Theories  of  Responsibility:  Ideal  Liberty 368 

§  254.   Eclective  Theories  of  Responsibility:  Practical  Freedom 371 

§  255.   Error  of  Subjecting  Science  to  State  of  Popular  Opinion 372 

§  256.   Exigencies  of  the  Idea  of  Justice 373 

§  257.   Eclectic  Theories  of  Responsibility:  Freedom  of  Intelligence  ....  373 

§  258.   Eclectic  Theories  of  Responsibility:   Voluntarianism 378 

§  259.   Eclectic  Theories  of  Responsibility:  Intimidability 382 

§  260.   Eclectic  Theories  of  Responsibility:  Normality  —  Poletti 390 

§  261.   Criticism  of  the  Theory  of  Poletti' 392 

§  262.   Criticism  of  the  Theory  of  Liszt 394 

§  263.   The  Eclecticism  of  Tarde 395 

§  264.   Original  Development  of  the  Eclecticism  of  Tarde 397 

§  265.   Eclectic  Theories  of  Responsibility:  Tarde,  Personal  Identity     .    .    .  401 

§  266.   Eclectic  Theories  of  Responsibility:   Social  Similarity 402 

§  267.  Eclectic  Theories  of  Responsibility:  State  of  Criminality 404 

Chapter  VI 

TWO  FINAL  PROBLEMS  OF  JUSTICE  WITHOUT  FREE  WILL 

Forms  of  social  sanction.     Criteria  of  social  sanction:   preventive,  reparatory, 

repressive,  and  eliminative  means. 

§  268.   Insufficiency  of  Other  Theories  of  Responsibility  than  the  Positive     .  406 

§  269.   Application  of  the  Fundamental  Principle  of  Responsibility  to  Crime  407 

§  270.   Greater  Importance  of  Prevention 410 

§  271.   The  Relations  of  Criminal  and  Civil  Law 413 

§  272.   Positive  Means  of  Social  Defense 414 

§  273.   Positive  Means  of  Social  Defense:  Preventive  Means 416 

§  274.   Positive  Means  of  Social  Defense:  Reparative  Measures      417 

§  275.   Positive  Means  of  Social  Defense:  Repressive  Means 419 

§  276.   Positive  Means  of  Social  Defense:  Eliminative  Means 419 

§  277.   Positive  Means  of  Social  Defense:  Summary 420 

Chapter  VII 

THE  CONDITIONS  OF  CRIMINALITY 

The  act,  the  agent,  and  the  society.  The  right  violated.  The  determining 
motive.  The  anthropological  category  of  the  delinquent.  Practical 
examples.  Attempts.  Complicity.  Classical  intricacy  and  posi- 
tivistic  justice. 

§  278.   The  Criteria  to  determine  the  Form  of  Punishment  in  any  Case     .    .  421 

§  279.  Determinative  Motives  of  Action 423 

§  280.   Criticisms  of  Determinative  Motives 424 


xviii  CONTENTS 

FACE 

§  281.  Determinative  Motives  as  Applied  to  Insane  Ddinquents 426 

§  282.   Justification  as  a  Defense 427 

§  283.  DiflBculty  of  Proving  the  Detenninative  Motives    as    a  Criticism 

of  Them  as  a  Criterion 428 

§  284.  The  Use  of  Determinative  Motives:  An  Example       428 

§  285.   Criteria  Applicable  to  an  Attempt      430 

§  286.   Criteria  Applicable  to  Complicity 431 

§  287.  Social  Accountability:  Conclusion     432 

Part  IV 
PRACTICAL  REFORMS 

Chapter  I 

INFLUENCE  OF  THE  NEW  DATA  OF  BIOLOGY  AND  CRIMI- 
NAL SOCIOLOGY  ON  RECENT  PENAL  LAWS 

Parallel  penalties  aggravating  and  extenuating  circumstances.  Asylums 
for  the  criminal  insane.  Special  procedures  for  delinquent  minors. 
Measures  {igainst  recidivists.  Reaction  against  short-term  imprison- 
ments. 

§  288.   Influence  of  the  New  Data      436 

§  289.  Examples  of  Influence  of  New  Data      438 

Chapter  II 

THREE  GENERAL  PRINCIPLES  FOR  PROCEDURAL  REFORM 
ACCORDING  TO  THE  POSITIVIST  SCHOOL 

Equilibrium  between  individual  rights  and  social  guaranties.  The  proper 
office  of  the  penal  sentence  aside  from  the  illusory  dose  measurement 
of  moral  responsibiUty.  Continuity  and  solidarity  between  the  dif- 
ferent practical  functions  of  social  defense.  Historical  reason  and 
illustrations  of  the  first  principle.  Exaggerations  of  the  doubt  in  favor 
of  the  accused  ("in  dubio  fro  reo")  in  forms  of  atavistic  criminaUty. 
Revision  of  the  trial.  Pardons  and  amnesties.  Reparation  of  the 
damages.  Proposals  of  the  positivist  school  in  the  individual  direc- 
tion: popidar  penal  action,  reparation  of  judicial  mistakes,  least 
quota  of  criminahty 
§  290.   Three  Great  Principles  of  the  Positive  School  or  Procedural  Reform    442 

§  291.   The  Same  Subject 443 

§292.   Examples  of  Exaggerated  Individualistic  Tenets 444 

§293.   Equality  between  Individual  Rights  and  Social  Defense  —  "Non- 
proven"     446 

§  294.   EquaUty  between  Individual  Rights  and  Protection  of  Society:  The 

State's  Right  to  Appeal 447 

§  295.   Equality  between  Individual  Rights  and  Social  Protection:   Pardons    448 

§  296.    First  Form  of  Individual  Criminal  Action 451 

§  297.   Second  Form  of  Individual  Criminal  Action 451 

§  298.   Reparation  to  a  man  unjustly  convicted      452 

§  299.   Abolition  of  Certain  Crimes ; 454 


CONTENTS  xix 


Chapter  III 

THE  MACHINERY  OF  PENAL  JUSTICE  AND  ITS  ACTUAL 
CHARACTER 

The  proper  duty  of  a  penal  judgment.  The  preparation  of  the  case  (judicial 
police).  Pleadings  (accusation  and  defense).  Trial  (the  judge  and 
jury).     The  criminal  clinic.    Civil  and  criminal  judges.     Intelligence 

and  independence  of  judges.    Their  election.    Powers  of  the  judge.  page 

§  300.   The  Characteristics  of  Penal  Judgment 456 

§  301.   Impersonality 456 

§  302.    Characteristics  of  Penal  Judgment:  Judicial  License 457 

§  303.    Characteristics  of  Penal  Judgment;   Lack  of  Organization 459 

§  304.    Characteristics  of  Penal  Judgment:  Their  Impotence 461 

§  305.   Proper  Duty  of  a  Penal  Judgment 462 

§  306.   The  Phases  of  Evidence 464 

§  307.   Penal  Process:   Detection  of  the  Criminal;  Bertillonage 465 

§  308.    Penal  Process:  Detection  of  the  Criminal;  Sphygmography    ....  467 

§  309.   Penal  Process:  Detection  of  the  Criminal:  Conclusion 468 

§  310.    Penal  Process:  Trial 471 

§  311.   Penal  Process:   Public  Defenders 472 

§  312.   Penal  Process:   The  Judiciary 472 

§  313.   Penal  Process:  Scientific  Capacity  of  Judiciary 473 

§  314.   Penal  Process:   Independence  of  the  Judiciary 474 

§  315.   Penal  Process:  The  Qualification  of  the  Judiciary 476 

Chapter  IV 
THE  JURY 

Advantages  and  disadvantages  of  the  jury  as  a  political  institution.  The 
jury  from  the  standpoint  of  psychology  and  sociology.  Abolition  of  the 
jury  for  common  crimes.     The  most  urgent  reforms 

§  316.   Positivistic  Abolition  of  the  Jury  System 479 

§  317.   Arguments  in  Favor  of  the  Jury  System 479 

§  318.   The  Jury  System:  its  Advantages  and  Disadvantages      481 

§  319.   The  Jury  as  a  Juridical  Institution 482 

§  320.   The  Capital  Fault  of  the  Jury  System 485 

§  321.   The  Insufficiency  of  the  Jury:  Personal  Capacity 485 

§  322.   The  Insufficiency  of  the  Jury:  The  Incoherence  of  its  Acts      ....  487 

§  323.   The  Jury  Considered  Psychologically  and  Sociologically 489 

§  324.   Disadvantages  of  the  Jury  System:    the  Tendency  of   the  Profes- 
sional Judge  to  Convict 490 

§  325.   Disadvantages  of  the  Jury  System:    Psychologically   Unfitted  for 

Europe      491 

§  326.    Disadvantages  of  the  Jury  System:  Not  Evolutionary 493 

§  327.   The  Necessity  of  the  Abolition  of  the  Jury  System  in  the  Trial  of 

Ordinary  Crimes 495 


CONTENTS 


Chapter  V 

THE  "BANKRUPTCY  OF  THE  CLASSICAL  PENAL  SYSTEMS" 

AND  THE  POSITIVIST  SYSTEM  OF  REPRESSIVE  SOCIAL 

DEFENSE 

Fundamental  criteria  of  the  defensive  system.  Segregation  for  an  indeter- 
minate time  with  perioidc  revision  of  sentences.  Reparation  of  the 
damages  as  a  function  of  the  State.  Appropriation  of  specific  measures 
to  the  categories  of  criminals  reversing  the  classical  unity  of  punish- 
ment.    Common  characteristics   of   the   different  establishments   of 

segregations.  paob 

S  328.   The  Bankruptcy  of  the  Classical  Penal  Systems 498 

§  329.   Fundamental  Criteria  of  the  System  of  Social  Defense      502 

§  330.    (.\)   Segregation  for  an  Indeterminate  Period 502 

§  331.    (B)   Reparation  in  Damages 509 

§  332.   (C)   The  Choice  of  Defensive  Means  for  Different  Categories  of  De- 
linquents    515 

§  333.  Prisons  must  be  Hospitals  where  Delinquency  is  Treated 518 

§  334.   Prisons  must  not  be  Places  of  Ease 519 

§  335.   Universal  Necessity  of  Working  in  Prisons 519 

Chapter  VI 

PRACTICAL  REFORMS 

§  336.   Insane  Criminals  and  Asylums  for  the  Criminal  Insane 521 

§  337.   Asylums  for  the  Criminal  Insane.     Objections.     Expense 522 

§  338.   The  Bom  Criminal  and  Capital  Punishment 527 

§  339.   Theory  that  no  Punishment  should  be  Permanent 533 

§  340.   Deportation  for  Life 534 

§  341.   Indeterminate  Segregation 537 

§342.  The  Cellular  System 540 

§  343.   Outdoor  Work  in  Farming  Colonies 543 

§  344.   Classification  of  Habitual  Criminals 545 

§  345.   Occasional  Criminals  and  the  Abuse  of  Short  term  Sentences       .    .    .  545 

§  346.   Substitutes  for  Short-term  Sentences 546 

§  347.   Substitutes  for  Short-term  Sentences:  Conditional  Sentence    ....  547 

§  348.   Delinquents  through  Passion:  their  Relative  Impunity 553 

§  349.   Summary  of  Practical  Reform 554 

Chapter  VII 

CONCLUSION 

§  350.   The  Future  of  Penal  Science  and  Practice 555 

§  351.   Relations  between  Penal  Law  and  Criminal  Sociology,  and  Criminal 

Sociology  and  PoUtics 556 

§  852.   Value  of  Origin  of  Crime  as  a  Basis  of  Criminology 562 

§  353.   Ultimate  Significance  of  New  Discoveries  and  Methods 563 

§  354.   Penal  Procedure  in  the  Future 565 

§  355.  The  Penal  Science  of  the  Future 565 

INDEX 571 


\ 


EDITORIAL  PREFACE  TO  THE  PRESENT  VOLUME 

BY  WILLIAM  W.  SMlTHERSi 

The  practical  usefulness  of  this  work  to  students  of  criminology 
in  this  country  lies  in  its  assertion  and  demonstration  with  doc- 
trinal force  of  the  announced  but  undeveloped  theories  of  Lieber, 
("Essay  on  Subjects  of  Penal  Law"  and  "Civil  Liberty"),  Green 
("Crime")  and  Drahms  ("The  Criminal").  These  writers  re- 
vealed successive  stages  of  the  advanced  thought  adumbrated  by 
Howard,  Romilly  and  Jebb  of  England  even  so  far  as  to  indicate 
the  turn  from  the  crime  to  the  criminal,  but  none  of  them  ven- 
tured to  declare  a  school  or  doctrine  even  after  the  pronouncements 
of  the  Anthropological  Society  founded  in  1859  had  started  Lom- 
broso  upon  his  anthropological  investigations  and  flooded  Europe 
with  voluminous  polemics.  It  is  true  that  meanwhile  many 
phases  of  criminology  have  been  earnestly  studied,  accepted  and 
enacted  into  legislative  mandate.  No  American  writer,  however, 
has  devoted  such  untiring  energy  to  the  problem  as  a  whole  as 
Gross  of  Austria,  Tarde  of  France,  Garofalo  of  Italy  or  Bonger 
of  Holland.  While  these  men  have  differed  among  themselves, 
they  have  been  earnest  and  honest  investigators  and  have  prof- 
fered society  a  rational,  adequate  and  practical  substitute  for  the 
futile  and  long-tried  traditional  remedies  against  crime.  Of  all 
the  European  writers,  however,  none  has  so  fully  demonstrated 
the  practical  necessity  and  feasibility  of  blending  the  study  of  the 
criminal  and  the  ordinary  processes  of  administrative  police  and 
judicial  procedure,  as  the  man  whose  work  is  here  presented  to 
the  American  public  in  the  English  language  for  the  first  time. 

Enrico  Ferri,  founder  of  criminal  sociology,  and  since  Lom- 
broso's  death  perhaps  the  chief  representative  of  the  Italian  school 
of  criminologists,  was  born  February  25,  1856,  in  the  little  Italian 
city  of  San  Benedetto  Po,  in  the  province  of  Mantua.  After 
graduating  from  the  Lyceum  in  Mantua,  he  entered  the  University 
of  Bologna  in  1874  and  became  a  pupil  of  Pietro  EUero,  then 

^  [Member  of  the  Philadelphia  [Bar;  former  Secretary  of  the  Bureau  of  Com- 
parative Law  of  the  American  Bar  Association;  author  of  "Executive  Clemency 
in  Pennsylvania"  (1909),  etc.,  etcj 

xxi 


jndi  EDITORIAL   PREFACE 

professor  of  Criminal  Law,  who  was  also  deeply  interested  in 
sociological  and  political  studies.  From  him  Ferri  derived  his 
inspiration  to  work  in  criminal  statistics  and  studies  along  similar 
lines.  In  1878,  when  twenty-one  years  of  age,  he  published  his 
first  work,  "The  Theory  of  Imputability  and  the  Denial  of  Free 
Will."  During  1878-9  he  studied  at  Paris  and  wrote  his  "Studies 
of  Criminality  in  France  from  1826  to  1878,"  a  work  in  criminal 
statistics,  which  was  at  once  recognized  as  authoritative  by 
French  scholars.  In  1879  he  returned  and  entered  the  University 
of  Turin,  where  he  became  a  pupil  of  Lombroso.  Through  the 
influence  of  Ellero  he  was  appointed  Professor  of  Criminal  Law 
in  the  University  of  Bologna  in  1880.  Ferri  proved  himself  a 
bom  teacher;  from  the  first  his  lecture  rooms  were  crowded,  and 
his  popularity  among  students  was  very  great.  In  1882,  he  ac- 
cepted a  call  to  a  similar  chair  in  the  University  of  Siena.  Here 
he  completed  in  1884  the  first  edition  of  his  "The  Homicide,"  in 
which  he  set  forth,  for  the  first  time,  his  well-known  classification 
of  criminals.  In  the  same  year  he  also  published  the  first  edition 
of  his  "Criminal  Sociology." 

In  May,  1886,  he  was  elected  a  deputy  to  the  Italian  Parlia- 
ment by  the  Socialist  party.  For  a  time  his  work  as  a  teacher 
was  interrupted  by  his  poUtical  activities,  but  in  spite  of  them  he 
continued  his  work  as  a  writer  along  fines  of  criminology  and  law. 

In  1890  he  was  called  to  the  University  of  Pisa  for  the  chair 
of  Francesco  Carrara  who  had  been  the  leader  of  the  classical 
school  of  criminal  law  in  Italy.  Ferri's  socialist  activities  con- 
tinued, however,  and  resulted  in  1893  in  his  being  ousted  from  his 
chair  in  spite  of  the  traditional  irremovabihty  of  "ordinary" 
professors. 

In  1896  Ferri  founded  and  became  the  chief  editor  of  the  So- 
ciafist  paper  "Avanti."  At  the  same  time  he  took  up  the  private 
practice  of  law  in  the  City  of  Rome.  During  most  of  this 
period  Ferri  was  the  leader  of  his  party  in  the  Italian  Parliament, 
where  he  became  recognized  as  an  orator  of  great  power  and 
abihty.  Meanwhile,  in  the  private  practice  of  law  he  gained  a 
high  reputation  for  ability.  In  1904  he  was  made  Professor  of 
Criminal  Law  at  the  Royal  University  in  Rome,  which  chair  he 
has  held  since  that  time. 

In  addition  to  the  works  already  mentioned,  Ferri  has  pub- 
lished the  following  along  criminological  lines: 

"I  nuovi  orizzonti  del  Diritto  e  della  procedura  penale"  (1881); 


EDITORIAL   PREFACE  xxiii 

**La  scuola  positiva  di  diritto  criminale"  (1883;  translated  by 
Kerr,  Chicago,  1906, "  The  Positive  School  of  Criminology") ; 

"Polemica  in  difesa  della  Scuola  criminale  positiva"  (1887); 

"Variations  thermometriques  et  criminalite"  (1888); 

"Delitti  e  delinquenti  nella  scienza  e  nella  vita"  (1889); 

"L'omicidio  nell'  Antropologia  criminale,"  2  vols.  (1895); 

"Les  criminels  dans  I'art  et  la  litterature"  (2d  ed.  Paris,  1906); 

"Studi  suUa  criminalita  ed  altri  Saggi"  (1904). 

The  first  Italian  edition  of  "Criminal  Sociology"  appeared  in 
1884  and  consisted  of  but  160  pages,  while  the  fifth  Italian  edi- 
tion of  1900  contained  1000  pages.  A  translation,  edited  by  the 
Rev.  W.  Douglas  Morrison,  appeared  in  England  in  1897;  it 
contained,  however,  only  a  portion  of  the  original  work  and 
omitted  most  of  the  copious  notes,  being  based  on  an  eariier 
edition  of  the  original.  The  present  translation  is  made  from 
the  French  edition  of  1905  (the  latest)  which  was  revised  by  the 
author  himself. 

The  distinctive  contribution  of  Ferri  to  the  science  of  criminol- 
ogy has  been  his  insistence  that  crime  is  mainly  a  social  phenom- 
enon, though  not  to  be  interpreted  exclusively  as  such.  He 
has  sought  to  reconcile  the  physical  and  anthropological  with 
the  social  elements  in  the  phenomenon  of  crime.  In  this  he 
has  been  highly  successful.  His  "Criminal  Sociology"  marked 
an  epoch  both  in  criminology  and  sociology.  In  general,  Ferri 
adheres  to  a  doctrine  of  social  determinism  as  regards  crime,  but 
he  so  interprets  this  doctrine,  both  socially  and  legally,  as  to 
avoid  many  of  its  objectionable  elements.  In  "Modern  Theories 
of  Criminality"  by  De  Quiros,  translated  as  Vol.  I  of  the  Modern 
Criminal  Science  Series,  will  be  found  an  appreciation  of  Ferri's 
place  in  modern  criminal  science. 

Ferri  may  be  regarded  as  Lombroso's  most  distinguished  pupil, 
and,  in  a  sense,  as  a  continuer  of  his  work,  though  supplementing 
it  on  the  sociological  side  and  giving  it  a  greater  breadth  than 
Lombroso  himseK  showed.  Ferri's  work  on  Criminal  Sociology 
may  be  regarded,  therefore,  as  epoch-making,  in  bringing  to- 
gether the  anthropological  studies  of  Lombroso  and  his  own  work 
in  criminal  statistics  and  in  criminal  law,  resulting  in  the  founding 
in  Italy  of  a  new  school  of  positive  criminal  law,  of  which  Ferri 
is  himself  the  chief  exponent. 

The  translation  of  the  present  treatise  has  been  delayed,  be- 
cause death  twice  laid  its  imperative  hand  upon  the  enterprise. 


xxiv  EDITORIAL    PREFACE 

Joseph  Ignatius  Kelly  (A.M.,  Ph.D.,  Fordham  College; 
C.E.,  Pennsylvania  Military  College;  LL.B.,  Chicago  College  of 
Law)  who  began  the  work,  received  a  cosmopoUtan  education, 
traveled  and  studied  in  several  foreign  countries,  and  finally  de- 
voted his  talents  to  the  law.  His  tastes  and  accomplishments 
drew  him  into  the  historical  as  well  as  the  philosophical  regions 
of  the  science.  He  planned,  and  had  printed  in  some  tentative 
fragments,  an  English  translation  of  the  Roman  Digest, — of  which 
no  complete  translation  has  ever  been  published  in  English. 

In  1906  he  was  appointed  Lecturer  on  Roman  Law  in  North- 
western University.  In  1907  he  was  appointed  Dean  of  the 
Faculty  of  Law  of  the  State  University  of  Louisiana;  but  after 
three  years  was  obliged  by  ill  health  to  resign,  and  returned  to 
Chicago.  Here  he  began  the  present  translation,  while  engaging 
in  the  practice  of  international  and  comparative  law.  At  this 
time,  the  fruits  of  some  of  his  studies  were  published  in  the 
lUinois  Law  Review:  "The  Gaian  Fragment"  (VI,  561),  "The 
Titanic  Death  Liability"  (VII,  137). 

When  the  present  translation  was  a  little  more  than  one  half 
finished,  Mr.  Kelly  died,  in  August,  1913;  and  American  scholar- 
ship lost  a  contributor  of  brilliant  promise. 

John  Lisle  (A.B.,  LL.B.,  University  of  Pennsylvania)  next 
took  up  the  translation.  After  a  practical  experience  in  legal 
afifairs  as  counsel  for  the  Philadelphia  Legal  Aid  Society  and 
for  the  Society  for  Organizing  Charity,  he  had  become  interested 
in  criminology.  A  study  of  his  on  Vagrancy  Laws  was  published 
in  the  Journal  of  the  American  Institute  of  Criminal  Law  and 
Criminology  (V,  498).  At  the  same  time  his  talents  in  foreign 
languages  were  employed  in  translations  for  the  Committee  of 
the  Association  of  American  Law  Schools,  in  their  Modern  Legal 
Philosophy  Series,  — Miraglia's  "Comparative  Legal  Philosophy" 
and  Del  Vecchio's  "Formal  Bases  of  Law." 

On  the  death  of  Mr.  Kelly,  the  Editorial  Committee  of  the 
Institute  secured  Mr.  Lisle's  cooperation  to  complete  the  transla- 
tion of  the  present  treatise.  Before  it  was  completely  revised 
for  the  press,  Mr.  Lisle  was  drowned  at  Atlantic  City,  on  June 
20,  1915,  while  performing  an  act  of  heroism  in  attempting  to 
save  the  lives  of  others.  A  more  extended  account  of  the  life 
and  services  of  this  devoted  scholar  and  pubUcist  will  be  found 
in  a  Memorial  by  Wm.  Draper  Lewis,  published  in  the  Journal 
of  the  Institute  (VI,  486). 


EDITORIAL   PREFACE  X3fV 

To  complete  the  revision  for  the  press  —  a  task  of  considerable 
extent,  in  view  of  the  circumstances  —  the  committee  secured 
the  skilled  services  of  Mr.  George  F.  Deiser  (lecturer  in  the  Law 
School  of  the  University  of  Pennsylvania)  and  Dr.  John  A.  Forst 
(of  the  Philadelphia  Bar),  who  have  kindly  and  faithfully  re- 
vised the  text  with  thoroughness  and  seen  the  work  through  the 
press.  The  Committee  here  offers  to  them  its  sincerest  thanks, 
on  behalf  of  the  American  Institute  of  Criminal  Law  and  Crimi- 
nology, for  thus  enabUng  this  important  work  at  last  to  be 
brought  to  fulfilment. 


INTRODUCTION  TO  THIS  VOLUME 

By   CHARLES   A.  ELLWOOD  i 

In  the  opinion  of  the  writer,  Ferri  should  be  called  the  first 
of  living  criminal  sociologists.  And  the  translation  of  this,  his 
greatest  work,  into  English  is  a  service  for  which  all  students  of 
criminology  and  sociology  should  be  grateful  to  the  American 
Institute  of  Criminal  Law  and  Criminology. 

Criminal  Sociology  may  be  regarded  as  a  special  application 
of  general  sociology  to  the  problem  of  crime  and  of  the  treat- 
ment of  the  criminal.  Sociology,  on  the  other  hand,  is  a  general 
or  synthetic  science  of  the  whole  life  of  human  society,  —  its  ori- 
gin, development,  organization,  and  functioning.  Criminal  So- 
ciology, therefore,  comes  near  to  being  the  whole  of  Criminology, 
both  in  its  theoretical  and  in  its  practical  aspects,  so  far  as  the 
latter  aims  to  furnish  a  synthetic  view  of  the  problem  of  crime 
and  of  the  treatment  of  the  criminal  as  a  whole.  It  is  in  this  sense 
that  our  author,  Professor  Ferri,  evidently  understands  the  term 
"Criminal  Sociology"  as  the  title  of  the  present  work. 

We  have  a  right  to  ask  first  of  all,  therefore,  what  the  social 
philosophy  is  upon  which  Professor  Ferri  bases  his  Criminal  So- 
ciology. The  work  before  us  is  not  a  mere  empirical  study  of  the 
causes  and  conditions  of  crime  in  the  social  environment.  It  is 
rather  a  Criminal  Sociology  in  the  sense  in  which  we  have  just 
defined  that  term.  To  discover  Professor  Ferri's  social  philoso- 
phy, however,  we  must  turn  to  his  other  works,  as  well  as  to  his 
"  Criminal  Sociology."  His  "New  Horizons  of  Criminal  Law  and 
Penal  Procedure,"  his  "Socialism  and  Criminality,"  his  "Socialism 
and  Modern  Science,"  ^  and  his  three  lectures  on  "The  Positive 
School  of  Criminology,"  ^  furnish  material  which  gives  us  a  fairly 
clear  insight  into  his  general  sociology.  We  shall,  accordingly, 
make  use  of  the  above  works  in  attempting  a  critical  estimate  of 
Professor  Ferri's  "Criminal  Sociology." 

It  may  be  said  in  general  that,  among  living  writers,  perhaps 

*  [Professor  of  Sociology  in  the  University  of  Missouri.  —  Ed.] 

*  English  Translation  by  Kerr  &  Co.,  Chicago,  1909.  »  Ihid.,  1912. 


xxviii  INTRODUCTION   TO   THIS  VOLUME 

no  one  approaches  the  sociological  ideal,  in  the  treatment  of  the 
problem  of  crime,  closer  than  Ferri.  He  has  been,  not  only  a 
prolific  and  original  thinker  in  the  field  of  criminology,  setting 
forth  among  the  first  a  clear  theory  of  the  causation  of  crime,  a 
workable  classification  of  criminals,  a  social  theory  of  punishment 
and  responsibility,  a  sociological  conception  of  criminal  jurispru- 
dence, and  practical  suggestions  as  to  the  prevention  of  crime; 
but  he  has  also,  at  the  same  time,  had  a  synthetic  view  of  the  re- 
lation of  all  of  these  to  one  another  and  to  the  general  philosophy 
of  society.  He  eminently  deserves,  therefore,  to  be  called  a  crimi- 
nal sociologist  in  the  true  sense,  even  though  one  may  have  to 
criticize  the  sociology  upon  which  he  builds  his  general  view  of  the 
problem  of  crime. 

All  this  does  not  mean  that  Ferri  is  not  to  be  considered  a  mem- 
ber of  the  Italian  School  of  Criminology.  To  be  sure,  in  some 
respects,  he  stands  apart  from  the  other  members  of  that  school, 
as  broader  and  more  synthetic  in  his  view  of  the  problem  of  crime. 
The  Italian  School  of  Criminology,  it  may  be  said  by  way  of  ex- 
planation, has,  in  general,  over-emphasized  the  biological  factors 
in  crime.  They  have,  accordingly,  placed  great  stress  upon  the 
anthropological  study  of  the  individual  criminal,  and  have  espe- 
cially emphasized  the  doctrine  of  the  "born-criminal"  as  forming  a 
definite  anatomical  type.  How  far  Ferri  endorses  these  typical 
doctrines  of  the  Italian  School,  we  shall  see  as  we  proceed.  It 
suflSces  here  to  say  that  as  a  pupil  of  Lombroso  he  is  prepared  to 
see  whatever  truth  there  may  be  in  these  doctrines.  Ferri,  ac- 
cordingly, is  conspicuous  as  a  defender  of  the  Italian  School  and 
as  a  reconciler  of  its  doctrines  with  seemingly  conflicting  facts  in 
the  field  of  criminology. 

What  then  is  the  sociological  background  of  Ferri 's  crimino- 
logical theories?  In  his  "Socialism  and  Modern  Science"  Ferri 
tells  us  that "  Marx  complements  Darwin  and  Spencer,  and  together 
they  form  the  great  scientific  trinity  of  the  nineteenth  century." 
Ferri's  sociology,  in  other  words,  is  the  sociology  of  Spencer  and 
Marx,  modified  in  some  slight  degree  by  the  biological  doctrines 
of  Darwin.  Now  the  point  of  view  of  Spencer  and  Marx  in  so- 
ciology is  materialistic  and  mechanistic,  though  they  may  not 
always  be  so  consistently  in  their  practical  treatment  of  social 
problems.  Ferri's  point  of  view  also  is  that  of  a  materialistic  and 
mechanistic  monist,  though  he  is  not  consistently  such  when  he 
comes  to  the  practical  treatment  of  the  problem  of  crime.    He 


INTRODUCTION   TO  TinS   VOLUME  xxix 

feels  compelled,  therefore,  at  the  outset  to  deny  that  there  is  any 
truth  in  the  doctrine  of  free  will.  It  may  be  remarked  in  passing 
that  his  treatment  of  this  doctrine  shows  the  same  confusions 
which  we  find  in  most  materialistic  writers.  He  avoids  the  issue 
as  to  whether  there  is  any  such  thing  as  psychic  or  rational  de- 
termination. In  places  he  argues  that  all  the  determining  factors 
in  activity  are  ultimately  extra-personal;  in  other  places,  however, 
he  seems  to  say  that  personality  is  a  true  factor  in  the  determina- 
tion of  activity,  though  he  does  not  explain  in  any  place  what  he 
means  by  personality.  Hence,  his  whole  argument  regarding  free 
will  is,  from  the  standpoint  of  philosophical  criticism,  confused; 
and  he  is  certainly  very  far  from  meeting  the  issue  involved  in 
that  much  debated  question. 

As  a  consequence  of  his  denial  of  the  doctrine  of  free  will,  Ferri 
finds  no  place  for  a  doctrine  of  moral  responsibility  in  any  strict 
sense,  but  tries  to  make  his  doctrine  of  social  accountability  take 
the  place  of  moral  responsibility.  A  more  important  theoretical 
consequence,  however,  is  that  Ferri's  psychology  remains  essen- 
tially the  "passive"  psychology  of  the  English  Associational  School 
which  was  dominant  during  the  greater  part  of  the  nineteenth 
century.  According  to  such  a  doctrine  of  human  nature,  the  in- 
dividual is  essentially  the  puppet  of  the  forces  of  environment  and 
of  physical  heredity,  and  there  is  small  place  for  the  creative 
activity  of  the  individual  mind.  . 

In  all  of  the  above  Ferri  is  a  consistent  follower  of  the  socio- 
logical doctrines  implied  in  Spencer's  "First  Principles."  In  the 
earliest  period  of  his  development,  indeed,  Ferri  is  almost  wholly 
under  the  influence  of  Spencer's  sociology.  At  a  later  period, 
however,  he  became  a  convert  to  the  practical  program  of  Marxian 
socialism.  Now  the  social  philosophy  of  Marx,  while  as  material- 
istic as  Spencer's,  differs  from  the  latter  in  that  it  emphasizes  the 
great  role  played  by  economic  factors  in  social  evolution;  whereas 
Spencer  emphasized  more  especially  the  physical  and  biological 
factors.  As  is  well-known,  the  background  implied  in  Marx's 
practical  social  program  was  a  more  or  less  rigid  "economic  deter- 
minism." To  this  doctrine  Ferri  professes  nominal  allegiance.  But 
finding  it  impossible  to  reconcile  such  a  theory  with  the  Lombro- 
sian  emphasis  upon  the  importance  of  the  biological,  and  with  the 
Spencerian  doctrine  of  the  finality  of  the  physical  factors  in  all  evo- 
lution, Ferri  in  practice  so  modifies  his  economic  determinism  that 
there  can  be  but  Uttle  scientific  objection  to  his  use  of  the  doctrine. 


XXX  INTRODUCTION   TO   THIS   VOLUME 

"There  are  still  those,"  he  says,  "who  would  maintain  the  one- 
sided standpoint  that  the  origin  of  crime  may  be  traced  to  the  so- 
cial element  alone.  So  far  as  I  am  concerned,  I  have  combated 
this  opinion  from  the  very  inauguration  of  the  positive  school  of 
criminology,  and  I  combat  it  to-day.  It  is  certainly  easy  enough 
to  think  that  the  entire  origin  of  all  crime  is  due  to  the  unfavorable 
social  conditions  in  which  the  criminal  lives.  But  an  objective, 
methodical  observation  demonstrates  that  social  conditions  alone 
do  not  suffice  to  explain  the  origin  of  criminality,  although  it  is 
true  that  the  prevalence  of  the  influence  of  social  conditions  is  an 
incontestable  fact  in  the  case  of  the  greater  number  of  crimes,  es- 
pecially of  the  lesser  ones.  But  there  are  crimes  which  cannot  be 
explained  by  the  influence  of  social  conditions  alone.  If  you 
regard  the  general  condition  of  misery  as  a  sole  source  of  criminal- 
ity, then  you  cannot  get  around  the  difficulty  that  out  of  one  thou- 
sand individuals  living  in  misery  from  the  day  of  their  birth  to 
that  of  their  death,  only  one  hundred  or  two  hundred  become  crimi- 
nals, while  the  other  nine  hundred  or  eight  hundred  either  sink 
into  biological  weakness  or  become  harmless  maniacs  or  commit 
suicide  without  perpetrating  any  crime.  If  poverty  were  the  sole 
determining  cause,  one  thousand  out  of  one  thousand  poor  ought 
to  become  criminals.  If  only  two  hundred  become  criminals 
while  one  hundred  commit  suicide,  one  hundred  end  as  maniacs, 
and  the  other  six  hundred  remain  honest  in  their  social  condition, 
then  poverty  alone  is  not  sufficient  to  explain  criminality.  We 
must  add  the  anthropological  and  telluric  factors."  ^ 

Ferri  concludes  that  "Even  Socialism,  which  looks  forward  to 
a  fundamental  transformation  of  human  society  on  the  basis  of 
brotherhood  and  social  justice,  cannot  elevate  itself  to  the  abso- 
lute and  naive  faith  that  criminality,  insanity,  and  suicide  can  ever 
fully  disappear  from  the  earth."  ^  It  is  evident,  therefore,  that 
Ferri's  allegiance  to  Marxian  dogmas  is  nominal  rather  than  real, 
and  that  it  is  not  sufficient  to  greatly  interfere  with  the  accuracy 
of  his  scientific  perceptions  or  the  soundness  of  his  theories.  How- 
ever, in  his  later  writings,  Ferri  has  tended  to  stress  to  a  con- 
siderable extent  the  importance  of  economic  elements  in  the 
problem  of  crime. 

A  consideration  of  the  economic  factor  in  crime  conveniently 
introduces  us  to  Ferri's  whole  doctrine  of  criminal  causation. 

1  "The  Positive  School  of  Criminology,"  pp.  59,  60. 
« Ibid.,  p.  119. 


INTRODUCTION   TO   TfflS   VOLUME  xxxi 

This  doctrine  he  set  forth  as  early  as  1881  in  his  "Studies  on  Crim- 
inality in  France  in  1876-1878."  It  consists  essentially  of  the 
recognition  of  three  different  sets  of  factors  in  crime:  namely, 
those  in  the  physical  or  geographical  environment,  those  in  the 
constitution  of  the  individual,  and  those  in  the  social  environment. 
Ferri  calls  these  different  factors  the  anthropological,  the  physical 
or  telluric,  and  the  social.  The  anthropological  factors  include 
sex,  age,  race,  organic  and  psychic  constitution,  especially  indi- 
vidual anomalies,  whether  physical  or  mental,  acquired  or  heredi- 
tary. The  telluric  factors  are  climate,  temperature,  the  fertility 
of  the  soil,  meteoric  conditions,  etc.  The  social  factors  comprise 
economic  and  civic  status,  profession,  social  rank,  density  of  popu- 
lation, emigration,  public  opinion,  customs  and  religion,  industrial 
conditions,  government,  education,  etc.  In  a  word,  Ferri  finds 
that  crime  is  a  product  practically  of  all  the  forces  of  the  universe, 
though  these  forces  manifest  themselves  in  varying  proportions 
in  different  crimes  and  criminals.  To  Lombroso  he  would  give 
chief  credit  for  the  establishment  of  the  importance  of  the  an- 
thropologic factors,  and  it  is  especially  in  the  bom-criminal,  he 
thinks,  that  the  importance  of  the  anthropologic  factor  becomes 
manifest.  To  writers  of  the  socialist  school  he  would  give  credit 
for  calling  attention  to  the  importance  of  social  and  economic 
factors,  and  these  are  seen  especially  in  the  occasional  and  habitual 
criminals;  while  to  statisticians  like  Quetelet  he  would  give  credit 
for  the  establishment  of  the  importance  of  telluric  factors  like 
climate,  seen  especially  in  crimes  of  passion. 

The  result  of  this  theory  of  criminal  causation  is,  as  we  have 
already  indicated,  that  Ferri  gives  us  a  synthetic  view  of  the  prob- 
lem of  crime  which  well  deserves  to  be  called  sociological.  His 
theory  may  be  summed  up  by  saying  that  he  finds  crime  to  be  a 
biologic  and  social  abnormality,  produced  in  part  at  least  by  truly 
extra-social  forces.  There  can  be  little  objection  sociologically 
to  this  doctrine.  If  there  is  to  be  any  criticism,  it  must  be  upon 
the  emphasis  which  Ferri  gives  to  certain  factors.  In  the  opinion 
of  the  writer,  he  over-emphasizes  the  importance  of  both  the  an- 
thropological and  geographical  elements  in  crime.  This  is  due  to 
the  influence  of  Lombroso  on  one  hand  and  of  Spencer's  material- 
ism on  the  other  hand.  Ferri  fails,  especially  in  his  discussion  of 
the  social  factors  in  crime,  to  bring  out  the  enormous  importance 
of  the  influence  of  the  "subjective  environment,"  that  is,  the  en- 
vironment of  ideas,  ideals,  and  values  which  surround  every  indi- 


xxxii  INTRODUCTION   TO   THIS.  VOLUME 

vidual  from  childhood  up  in  every  social  group.  While  Ferri  has 
in  general  a  sociological  viewpoint,  yet  he  fails,  on  account  of  his 
Spencerian  and  Marxian  bias,  to  give  due  weight  to  "the  psychic 
factor,"  or  to  get  the  true  viewpoint  of  social  psychology. 

Somewhat  of  the  same  influences  are  to  be  found  in  Ferri's 
well-known  and  widely  adopted  classification  of  criminals.  Ferri's 
starting  p)oint  in  his  classification  is  simple  enough  and  beyond 
criticism  on  psychological  grounds.  He  first  divides  all  criminals 
into  habitital  and  occasional  criminals.  In  the  large  class  of  ha- 
bitual criminals,  however,  he  distinguishes  two  sub-classes:  the 
insane  criminal  suffering  from  some  clinical  form  of  mental  aliena- 
tion which  is  the  primary  factor  in  his  criminal  activity;  and  the 
bom-criminal,  who  has  a  congenital  predisposition  for  crime.  In 
both  of  these  cases  the  criminal  habit  rests  upon  organic  conditions, 
a  fact  which  distinguishes  it  very  sharply  from  those  cases  in  which 
the  habit  is  purely  acquired  from  the  contagion  of  a  vicious  en- 
vironment. In  the  group  of  occasional  criminals,  on  the  other 
hand,  there  stands  out  the  class  of  criminals  whose  crimes  are  due 
to  sudden  emotion  or  violent  passion.  This  constitutes  a  class  of 
emotional  criminals,  or  criminals  by  passion.  We  have,  therefore, 
the  following  five  classes  of  criminals:  (1)  insane  criminals;  (2) 
bom-criminals;  (3)  habitual  criminals,  or  criminals  from  acquired 
habit  in  the  strict  sense;  (4)  criminals  by  passion;  (5)  occasional 
criminals  who  commit  isolated  criminal  acts  because  they  are 
led  astray  by  the  conditions  of  their  environment. 

There  can  scarcely  be  any  question  but  that  this  classification 
is  based  upon  observed  phenomena  and  is  a  workable  classification 
for  penological  purposes.  Rightly  understood,  as  Ferri  points 
out,  this  classification  by  no  means  precludes  the  complexity  of 
factors  causing  crime  in  the  case  of  each  class.  Thus  in  the  case 
of  the  born-criminal,  whom  Ferri  thinks  to  be,  following  Lombroso's 
later  theories,  the  victim  of  a  "criminal  neurosis"  analogous  to 
the  epileptic  neurosis,  the  congenital  predisposition  is  alone  not 
suflBcient  to  produce  crime.  "A  man,"  Ferri  says,  "may  be  a 
born-criminal,  that  is  to  say,  he  may  have  some  congenital  degen- 
eration which  predisposes  him  to  crime,  and  yet  he  may  die  at  the 
age  of  eighty  without  having  committed  any  crime  because  he  was 
fortunate  enough  to  live  in  an  environment  which  did  not  offer 
him  any  temptation  to  commit  crime."  In  the  same  way  the  in- 
sane with  criminal  tendencies  may  fail  of  the  commission  of  actual 
crimes.     Thus  Ferri's  classification  is  a  classification  based  upon 


INTRODUCTION   TO   TfflS   VOLUME  xxxiii 

the  predominant  trait  in  each  particular  class  of  criminals.  In  the 
case  of  the  born-criminal,  the  hereditary  constitution  of  the  indi- 
vidual, or  the  "criminal  neurosis,"  is  the  predominant  factor.  In 
the  case  of  the  insane  criminal,  the  predominant  factor  is  mental 
disease.  In  the  case  of  the  criminal  by  passion,  it  is  a  certain  in- 
nate emotional  tendency,  while  in  the  habitual  and  occasional 
criminals  the  influence  of  the  environment  predominates. 

Ferri's  classification  of  criminals  is  to  be  criticized,  if  at  all, 
because  he  fails  to  base  it  upon  a  simple,  clear  psychological  prin- 
ciple, and  because  it  is  not  the  simplest  and  best  classification  for 
the  purposes  of  penological  practice.  Criminologists  are  now 
agreed  that  there  are  only  three  main  types  of  offenders:  First, 
defective  criminals,  whose  crimes  are  due  to  inborn  mental  or 
nervous  defects;  secondly,  habitual  criminals,  who  have  acquired 
criminal  habits  from  their  social  surroundings;  thirdly,  occasional 
criminals,  or  "single  offenders,"  who  form  no  criminal  habit,  but 
who  commit  single  or  occasional  offenses  through  slight  defects  in 
character.  This  classification,  based  upon  the  simple  psychologi- 
cal principle  of  habit,  has  also  been  found  to  be  best  suited  to  the 
purposes  of  practical  penology.^  Manifestly,  such  a  classification 
does  not  differ  greatly  from  Professor  Ferri's  classification.  Under 
the  head  of  the  "defective  criminal"  we  should,  unhesitatingly, 
place  Ferri's  "born-criminal"  and  "insane  criminal,"  while  under 
the  head  of  "single  offenders"  we  could  place  his  "occasional 
criminal"  and  "criminal  by  passion."  The  only  point  of  criticism 
which  we  would  make  is  that  Professor  Ferri  does  not  seem  to 
have  been  perfectly  clear  as  to  the  principle  upon  which  he  based 
his  classification.  Recent  studies,  not  available  when  Professor 
Ferri  first  wrote,  have  made  clearer  the  three  main  types  of 
criminals. 

No  small  part  of  the  value  of  Professor  Ferri's  work  lies  in  the 
fact  that  he  has  not  despised  the  careful  discussion  of  remedial 
and  preventive  measures  for  dealing  with  crime.  Especially  must 
he  be  credited  with  being  one  of  the  first  to  emphasize  the  funda- 
mental importance  of  prevention  and  to  discuss  carefully  the  whole 
range  of  preventive  measures.  Herein  comes  what  Ferri  calls 
his  doctrine  of  "penal  substitutes."  Educational,  industrial, 
and  moral  reforms,  he  believes  can  easily  take  the  place  of  the  re- 

^  See  article  by  the  writer,  on  "  The  Classification  of  Criminals "  in  "  The 
Journal  of  American  Institute  of  Criminal  Law  and  Criminology,"  vol.  I,  pp. 
536-648. 


xxxvi  INTRODUCTION   TO   THIS   VOLUME 

Investigations  in  penology  promise  much  and  have  advanced 
the  science  along  many  lines,  both  practical  and  theoretical.  Art 
may  bind  and  shackle  the  hand;  it  may  become  conventional,  as 
is  frequently  disclosed  in  architecture  and  allied  arts;  but  science 
must  distinguish,  especially  when  we  come  to  deal  with  the  human 
mind  and  the  human  being  in  his  relation  to  the  social  compact  and 
the  obligation  of  that  compact  to  him,  since  both  involve  moral, 
social  and  economic  questions  of  the  highest  and  gravest  import- 
ance. The  ahenist,  the  economist,  the  pscychiatrist,  the  sociologist, 
the  psychologist,  psycopathist,  the  criminologist,  the  public  ad- 
ministrator and  the  public  at  large  are  ahke  interested  in  the  ultimate 
results  which  must  flow  from  observations  in  these  different  fields 
of  labor. 

The  courts  themselves,  as  related  to  the  final  drama  in  the  career 
of  the  criminal  or  defective,  are  too  engrossed  with  administrative 
features  to  be  able,  if  they  were  comp>etent,  to  deal  justly,  by  which 
we  mean  intelligently,  with  each  individual  case.  But,  present 
the  data  and  rehable  information  upon  which  to  base  its  conclu- 
sions, and  the  court  may,  and  will,  deal  justly  with  society  and 
with  the  individual.  It  cannot,  in  the  very  nature  of  things,  in  our 
complex  civilization,  and  in  the  face  of  the  swift  changes  in  our 
social  order,  give  the  attention  which  the  individual  cases  ought 
to  receive  —  for  that  is  a  work  of  sp>ecialization  in  itself  —  for  lack 
both  of  time  and  opportunity,  and  this  work,  if  done  at  all,  as  it 
must  be,  must  be  done  by  others.  This  lays  special  emphasis  upon 
the  field  of  work  and  the  duty  of  the  American  Institute  of  Criminal 
Law  and  Criminology 

It  has  been  the  frequent  inquiry,  if  not  the  conviction,  of  those 
charged  with  the  administration  of  the  criminal  laws,  whether  the 
accused  is  not  often  one  who  requires  treatment  rather  than  punish- 
ment. If  courts  are  to  be  directed  by  legislative  enactment,  it  is 
important  that  the  enactment  itself  be  not  merely  legislative  empiri- 
cism, but  scientific  deduction  from  reliable  sources  of  information. 
In  other  words,  it  is  not  exclusively  a  legal  science.  The  premises 
become  totally  dissimilar  when  we  are  confronted  with  mental 
phenomena,  whether  of  pronounced  psychosis,  or  weakmindedness, 
from  those  which  obtain  in  the  world  of  physical  phenomena.  This 
is  exemplified  in  the  modern  treatment  of  criminals  with  respect  to 
employment,  notably  with  respect  to  the  occupation  of  criminals  on 
the  pubHc  roads.  The  plan  has  been  bitterly  opposed  for  years 
on  many  grounds.     Now  it  so  happens  that  the  plan  has  been 


INTRODUCTION   TO   THIS   VOLUME  xxxvii 

adopted  in  a  number  of  the  states,  and  the  result  has  been  so  strik- 
ingly at  variance  with  many  preconceived  notions,  that  many 
men  who  were  opponents  have  come  to  be  firm  adherents  of  the 
system.  It  only  demonstrates  that  mental  attitudes  may  be  largely 
controlled  by  physical  conditions,  and  the  apparent  truth  of  yester- 
day is  the  contradiction  of  to-day  by  the  very  fact  of  trial  and 
experimentation. 

That  the  era  of  understanding,  and  consequently  of  rational 
investigation  into,  the  case  of  the  individual  misdemeanant  and 
the  criminal  has  set  in.  That  we  have  come  to  the  point  of  dis- 
tinguishing maUciousness  from  diseased  mentality,  and  to  recognize 
the  subject  as  one  for  the  speciahst  on  many  hues,  is  demonstrated 
by  the  increasing  interest  and  the  marked  development  of  the 
allied  sciences  bearing  upon  the  subject,  and  by  the  humane  pro- 
vision made  at  public  expense  to  permit  exhaustive  study  by  capable 
persons  for  ascertaining  the  true  and  just  relation  of  the  individual 
to  his  offense.  Invaluable  aid  is  thus  given  to  courts  and  admin- 
istrative officers,  with  justice  to  the  individual  and  society  at  large. 
It  comes  to  the  question  of  subjective  treatment  of  the  individual 
as  against  the  purely  objective  question  of  placing  offenders  in  jails 
or  prisons. 

It  is  therefore  both  refreshing  and  encouraging  to  find  in  this 
field  of  endeavor  the  scientific  arrangement,  and  the  careful  and 
exhaustive  treatment  of  many  of  these  questions,  coupled  with 
carefully  selected  data,  and  correlated  facts,  and  scientific  deduc- 
tions, as  found  in  the  proof  sheets  of  Prof.  Ferris'  invaluable  con- 
tribution to  the  Criminal  Science  Series.  Its  readers  will  find  in 
the  scientific  arrangement  and  analysis  of  the  work  itself  ample 
food  for  reflection.  Those  interested  in  the  science  will  here 
find  added  inducement  to  further  study  and  elaboration  of  these  im- 
portant subjects,  so  closely  allied  to  the  everyday  experience  of  all 
who  have  to  deal  with  them  in  an  administrative  capacity. 


AUTHOR'S  PREFACE  TO  THE  AMERICAN  EDITION 

A  NEW  American  edition  of  my  "Sociologia  Criminale"  affords 
me  the  greatest  satisfaction,  —  not  so  much  for  the  personal 
pleasure  in  the  acquisition  of  a  great  public  like  that  of  North 
America,  as  for  the  higher  reason  that  its  appearance  confirms  the 
work  of  scientific  germination,  which  is  an  inevitable  phase  for 
every  new  doctrine. 

After  the  first  and  more  clamorous  affirmations  of  the  posi- 
tivist  criminal  school  in  Italy  thirty  years  ago,  there  suddenly 
ensued  a  second  phase,  that  of  active  controversy  for  and  against 
the  new  theoretical  and  practical  mode  of  considering  crimes  in 
their  natural  genesis  and  penal  justice  as  an  instrument  of  social 
defense  against  criminals. 

In  Italy  and  in  continental  Europe  the  philosophical  traditions 
in  penal  justice  were  and  are  so  deeply  rooted  and  so  strong  that 
the  doctrines  of  the  new  criminal  school,  according  to  which  the 
foundations  of  criminal  justice  are  based  on  the  facts  of  biology 
and  of  criminal  sociology  rather  than  on  the  abstract  idea  of  law, 
were  necessarily  destined  to  arouse  the  most  ardent  enthusiasm 
asvwell  as  the  most  relentless  and  violent  opposition.  But  this 
noisy  polemical  phase  was  succeeded  by  a  period  of  relative  silence, 
both  because  of  the  exhaustion  of  the  controversy  itself,  and 
because  of  the  natural  decrease  of  scientific  production,  which 
could  not  continue  with  the  wonderful  fertility  of  the  first  ten 
years  of  life  of  the  new  criminal  school. 

This  silent  phase,  which  I  have  called  one  of  scientific  germina- 
tion, i.e.  one,  which  instead  of  representing,  as  some  superficial 
observers  believed,  a  subsidence  of  the  new  ideas,  represents  rather 
their  taking  hold  in  the  public  mind,  —  as  grains  of  wheat  just 
sown  seem  scattered  and  lost,  while  in  reality  in  a  phase  of  slow 
germination  they  prepare  for  growth  and  development  as  a  pro- 
ductive sprout. 

The  same  phenomenon  occurred  with  respect  to  the  classical 
school,  which  was  heralded  by  Cesare  Beccaria  in  his  celebrated 
work  on  "Crime  and  Punishment,"  first  published  anonymously 
in   1764,   when  the  social  atmosphere  was  vibrating  with  the 


xl  AUTHOR'S  PREFACE 

humanitarian  movement  which  fulminated  the  American  and 
French  Revolutions.  The  first  appearance  of  a  reformed  doctrine 
of  penal  justice,  thus  launched  by  Cesare  Beccaria,  brought  about 
a  period  of  violent  polemic,  favorable  and  unfavorable,  and  marked 
by  a  great  enthusiastic  outburst,  from  the  encyclopedists  of 
France  to  the  reigning  sovereigns  like  the  great  Leopold  of  Spain 
and  the  Emperor  Joseph  II  of  Austria.  But  after  that  flash  of 
enthusiasm,  Beccaria  and  his  doctrine  were  for  a  time  almost 
forgotten  by  the  civihzed  world  through  pubUc  indifiFerence.  Bec- 
caria died  in  1794,  and  only  after  1850  were  his  proposals  rec- 
ognized in  the  penal  legislation  of  Europe  and  America  and 
generally  accepted  by  pubUc  opinion. 

The  doctrines  of  Beccaria,  however,  were  not  so  profoundly 
radical  as  the  doctrines  of  the  positivist  criminal  school.  They 
left  penal  legislation  on  its  metaphysical  foundation  of  "retribu- 
tive justice,"  whereby  punishment  in  the  form  of  penalty  should 
be  proportioned  to  the  crime  as  the  effect  of  a  moral  fault.  Bec- 
caria did  not  contemplate  the  elimination  from  penal  justice  of 
the  surviving  barbarous  ferocity  in  penalties  such  as  corporal 
punishment,  death,  torture,  confiscation.  Yet,  in  spite  of  the 
limited  range  of  his  innovation,  nearly  a  century  elapsed  before 
his  ameliorating  doctrine  won  the  assent  of  legislators  and  judges 
or  were  approved  by  public  opinion. 

The  doctrine  and  proposals  of  the  new  criminal  school  are  a 
much  more  profound  innovation.  It  holds  that  crime  is  to  be 
studied  in  its  natural  and  social  causes,  because  a  crime  is  always 
the  effect  of  an  anomaly  or  of  a  pathological  condition,  permanent 
or  transitory,  in  the  individual  and  in  society  itself.  And,  on  this 
account,  penal  justice,  instead  of  having  a  mission  of  measuring 
the  "moral  fault"  of  the  delinquent  (a  measure  which  is  unalter- 
ably impossible),  and  of  measuring  a  "proportionate  punishment" 
(a  proportion  which  is  impossible,  because,  for  instance,  science 
and  practice  can  have  no  absolute  criteria  by  which  to  determine 
whether  the  prop)ortionate  punishment  for  murder  should  be 
death,  life  imprisonment,  or  imprisonment  for  a  certain  number 
of  years),  instead  of  this  mission,  penal  justice  can  only  be  a 
tactical  defense  against  the  danger  and  the  injury  represented 
by  crime;  a  kind  of  hygiene  and  clinic  against  the  disease  of  crimi- 
nality, analogous  to  the  social  function  of  hygiene  and  sanitary 
clinic  against  cholera,  typhus,  diphtheria,  yellow  fever,  or  mental 
alienation.     It  was  therefore  natural  that  the  proposals  of  the 


TO  THE  AMERICAN  EDITION  xli 

positivist  criminal  school  should  not  be  able  to  conquer  in  the 
brief  space  of  thirty  years  the  unanimous  consent  of  legislators, 
of  jurists,  and  of  public  opinion,  if  the  doctrines  of  Beccaria 
required  nearly  a  century. 

But  since  crime  is  above  all  marked  by  daily  occurrence  in  social 
life  and  follows  every  civilization  like  a  shadow,  changing  only 
its  form  and  intensity  according  to  the  stages  of  the  social  evolu- 
tion, so  every  day  the  attention  of  the  public  and  of  the  students 
(legislators,  judges,  lawyers,  teachers)  is  drawn  to  the  problem 
of  criminality,  particularly  when  some  notorious  crime  or  criminal 
trial  specially  excites  public  curiosity,  either  on  account  of  the 
extraordinary  circumstances  of  the  deed  or  the  exceptional  quality 
of  the  victim  or  of  the  delinquent.  Hence,  every  day  the  doc- 
trines and  proposals  of  the  positivist  criminal  school  are  spon- 
taneously recorded  more  or  less  effectively  in  the  public  conscience: 
as  is  demonstrated  by  the  fact  that,  at  every  celebrated  trial  the 
daily  press  discloses  with  more  or  less  fidelity  the  conclusions  of 
anthropology  and  of  criminal  sociology. 

These  are  the  natural  reasons  which  determined  that  work  of 
scientific  germination  to  which  I  referred  a  moment  ago. 

Another  reason  even  more  suggestive  should  be  added  to  them. 
It  is  our  experience  (noted  every  day,  in  every  country,  on  both 
sides  of  the  ocean)  that  the  penal  laws,  inspired  as  they  still  are 
by  the  traditional  doctrines,  are  powerless  to  preserve  civil  society 
from  the  scourge  of  criminality.  Extreme  severity  and  extreme 
mildness  of  punishment  have  equally  proven  ineflScacious.  It  is 
like  the  other  empiric  measures  taken  against  infectious  disease 
before  science  had  discovered  the  precise  cause  in  the  existence 
of  pathogenic  microbes.  Penal  justice  to-day,  confronted  with  the 
social  disease  of  criminality,  is  in  the  same  condition  as  that  of 
medicine  and  sanitary  police  when  confronted  by  cholera  or  typhus 
before  Pasteur  and  Koch  had  indicated  the  precise  and  positive 
cause. 

Faced  by  this  daily  bankruptcy  of  penal  justice  as  a  defense  of 
society  against  crime,  it  is  inevitable  that  there  should  be  a  more  or 
less  changed  orientation  of  public  opinion  in  relation  to  the  theo- 
retical researches  and  the  practical  proposals  of  anthropology  and 
criminal  sociology.  Indeed,  in  the  countries  where  the  practical 
phase  is  stronger  and  where  the  academic  traditions  are  least 
deadening,  we  observe  for  some  years  back  a  continuous  work  of 
partial  reforms,  of  penal  legislation,  which,  while  in  evident  con- 


xlii  AUTHOR'S  PREFACE 

tradiction  with  the  philosophical  premises  of  the  traditional  doc- 
trines, are  nevertheless  the  recognition,  although  not  confessed, 
of  the  new  doctrines  of  criminology.  The  Anglo-Saxon  countries, 
England  and  the  United  States,  have  thus  established  themselves 
in  this  new  path. 

While  the  traditional  doctrines  of  penal  justice  say  that  the 
delinquent  is  to  be  punished  when  he  has  committed  the  act 
while  having  the  use  of  his  moral  Uberty,  intelligence,  and  will, 
and  that  therefore  a  madman  who  has  committed  a  crime  should 
be  held  guiltless,  England  has  given  the  example  of  institutions 
for  the  criminal  insane.  These  asylums  for  the  criminal  insane 
are  naturally  approved  by  criminal  sociology;  but  were  and  are 
opposed  by  the  traditional  doctrines  of  penal  law.  Hence  we  see 
that  in  the  Latin  countries  and  even  in  Germany  through  the 
influence  of  the  tradition  of  juridical  philosophy,  institutions  for 
the  criminal  insane  are  combated  in  theory  and  hence  are  badly 
organized  in  practice.  The  traditional  doctrine  is  that  every  crime 
should  be  followed  by  its  sentence  and  every  sentence  should  be 
executed.  In  the  United  States,  on  the  contrary,  the  example  of 
a  conditional  sentence  has  been  set,  together  wath  a  probation 
system  for  the  less  dangerous  and  the  non-habitual  criminals, 
and  for  those  to  whom  a  sentence  of  a  few  days  in  prison  would  be 
useless  and  injurious. 

The  conditional  sentence  also  has  been  approved  by  the  new 
criminal  school  (especially  as  a  form  of  transition  to  a  new  judicial 
order) ;  while  it  is  combated  by  the  criminalists  of  the  traditional 
school.  Thus,  for  instance,  in  Germany  the  appUcation  of  a  con- 
ditional sentence  has  not  yet  been  obtained,  because  it  remains 
offensive  to  the  principle  of  metaphysical  justice.  In  like  man- 
ner, the  United  States  have  given  the  example  of  a  special  court 
for  juvenile  offenders.  This  too  is  a  blow  to  the  traditional  and 
philosophical  doctrines;  but  it  is  a  wise  concession  to  practical 
utihty,  being  in  perfect  theoretical  accord  with  the  doctrines  of 
anthropology  and  of  criminal  sociology.  The  reclusion  of  dangerous 
criminals  for  an  indeterminate  time  is  a  proposal  of  the  positivist 
criminal  school,  since  it  would  be  as  absurd  to  say  that  a  murderer 
should  remain  in  prison  twenty  years  rather  than  fifteen  or  thirty 
as  it  would  to  say  in  advance  that  a  sick  person  should  stay  in  a 
hospital  ten  days  rather  than  twenty  or  fifty.  As  the  sick  person 
is  kept  in  the  hospital  just  as  long  a  time  as  is  necessary  for  his 
cure,  and  as  the  insane  patient  remains  in  the  asylum  all  of  his  life 


TO  THE  AMERICAN  EDITION  xliii 

unless  cured  and  leaves  it  when  he  is  cured,  so  it  should  be  with 
the  delinquent,  who  in  the  circumstances  of  the  act,  in  his  personal 
condition,  and  in  the  conditions  of  the  social  medium,  shows  him- 
self unfit  for  a  life  of  liberty;  for  him,  conditional  sentence,  inflic- 
tion of  fines,  and  reparation  of  damage  are  not  suitable. 

Further,  imprisonment  for  an  indeterminate  period  (with 
necessary  guarantees  for  individual  and  family  rights  as  for  the 
insane),  while  haughtily  combated  by  the  jurists  of  the  classical 
and  the  metaphysical  school,  continues  its  conquest  of  the  prac- 
tical common  sense  of  legislators  in  America  and  in  Europe. 

I  might  say  of  judicial  police,  that  it  is  constantly  making  greater 
demand  upon  the  researches  of  biology  and  criminal  sociology, 
and  sees  in  the  scientific  study  of  deUnquent  man  the  means  of 
succeeding  with  greater  certainty  in  the  discovery  of  criminals. 
Mention  could  likewise  be  made  of  the  application  of  experimental 
psychology  to  criminal  procedure  in  testing  the  credibiUty  and  the 
value  of  oral  testimony. 

All  of  these  appUcations  and  reforms  are  practical.  Of  this, 
my  work  on  criminal  sociology  offers  a  logical  and  rational  demon- 
stration— not  by  means  of  the  abstractions  of  metaphysical  philos- 
ophy, but  with  the  scientific  method  of  observations  and  positive 
induction. 

A  further  reason  why  I  am  much  gratified  with  this  American 
edition  of  my  book,  is  that  its  pubUcation  is  due  to  the  kindly 
initiative  of  my  learned  colleague,  Professor  Wigmore,  of  the  North- 
western University  School  of  Law  in  Chicago. 

The  social  medium  of  the  United  States,  with  a  strong  orienta- 
tion towards  the  practical  things  of  life,  cannot  but  be  favorable 
to  a  method  so  practical  and  so  demonstrable  in  the  consideration 
of  a  social  function  so  lofty  and  important  as  penal  justice,  — 
the  protection  of  homes  and  men  from  criminals.  And  since  the 
new  North  American  progress  in  the  living  phases  of  individual 
and  social  existence  tends  to  reahze  the  theoretical  systems  of 
the  thinker  (and  this  is  as  characteristic  of  youthful  peoples  as 
of  individuals),  so  I  hope  and  augur  that  the  American  edition  of 
my  work  will  be  kindly  received  by  those  representatives  of 
American  scientific  thought  who  have  already  placed  so  many 
luminous  beacons  along  the  highway  of  modern  civilization. 

Enkico  Ferri 
University  of  Rome 


LIST   OF   ABBREVIATIONS  IN  TITLES  OF   BOOKS 

Saggi La  negazione  del  arbitrio  libero  ed  altri  saggi. 

Teoricadel  imputabilita. .  Teorica  dell'  imputabilita  e  la  negazione  del  arbitrio  libero 

LIST  OF  ABBREVIATIONS  IN  TITLES  OF  PERIODICALS 

A.  A.  C Archives  d'anthropologie  criminelle. 

A.  C.  Cr.  A Actes  du  congres  d'anthropologie  criminelle. 

A.  F.  S Archiv  f iir  Straf rechtswissenschaf t. 

A.  H.  P Annales  d'hygiene  publique. 

A.  I.  I.  S Annales  de  I'lnstitut  international  de  Sociologie 

E.  M.  P Annales  de  la  medecine  psychologique. 

A.  P Archivio  di  psichiatria  e  scienze  penale. 

A.  S Archivio  di  Statistica. 

A.  S.  R.  A Atti  della  Society  romana  d'antropologia. 

B.  E Biblioteca  dell'  economia. 

B.  I.  I.  S Bulletin  de  I'lnstitut  international  de  Sociologie. 

B.  S.  A Bulletin  de  la  Societe  d'anthropologie. 

B.  S.  G.  P Bulletin  de  la  Societe  generale  des  prisons. 

B.  U.  S.  D.  P.. .  .Bulletin  de  I'Union  intemationale  de  droit  p^nal. 

C.  R Comptes  rendus  au  congres  penitentiaire  de  Stockholm. 

E.N L'Ere  nouvelle. 

G.  M.  G Giomale  del  ministero  di  Giustizia. 

J.  E Journal  des  Economistes. 

J.  M.  S Journal  of  Mental  Science. 

J.  S.  S Journal  of  Statistics  of  Sociology. 

J.  T Journal  des  Tribunaux. 

M.  M.  L Manuale  della  medicina  legale. 

N.  R Nouvelle  revue. 

R.  A Revue  d'anthropologie 

R.  C Rivista  carceraria. 

R.  D.  M Revue  des  Deux  Mondes. 

R.  E Rivista  d'Europa. 

R.  F Rivista  di  freniatria. 

R.  F.  S Rivista  di  filosofia  scientifica. 

R.  G Rivista  di  Giurisprudenza. 

R.  I.  S Revue  intemationale  de  sociologie. 

R.  P Revue  philosophique. 

R.  P.  N Rivista  penologica  del  Niora. 

R.  R Revue  des  revues. 

R.  S Revue  scientifique. 

R.  S.  F Rivista  sperimentale  freniatria. 

S.  R Scuola  positiva. 

Z.  G.  S Zeitschrift  fiir  das  gesammte  Strafrechtswissenschaft. 

xlv 


CEIMINAL  SOCIOLOGY 


INTRODUCTION 

THE   POSITIVE   SCHOOL  OF   CRIMINAL  LAW 

I.  The  classical  criminal  school  inaugurated  by  Beccaria.     The  classical  peni- 

tentiary school  inaugurated  by  Howard.  Application  of  the  positive 
method  to  criminal  law.  As  in  medicine  and  political  economy.  In  lieu 
of  the  diminution  of  penalties  is  offered  the  diminution  of  crimes,  and 
instead  of  the  abstract  study  of  crime  as  a  juridical  phenomenon,  the 
positive  study  of  crime  as  a  natural  social  phenomenon  is  advocated. 

II.  First  accusations  against  the  positive  school.     The  eclectics.     Scientific  and 

practical  expansion  in  the  new  direction. 

III.  Criminal  Sociology. 

§  1.  Origin  of  Criminal  Sociology  —  General  Considerations. 
In  the  course  of  the  last  twenty  years  a  new  drift  of  ideas  on 
the  subject  of  crime  and  criminals  has  been  forming  in  Italy, 
and  is  rapidly  being  propagated  throughout  the  scientific  world. 
Neither  its  adversaries,  except  when  blinded  by  prejudice,  nor  its 
partisans,  unless  really  inconsiderate,  can  ascribe  its  progress 
solely  to  either  the  effects  of  caprice  or  purely  personal  efforts. 
Whenever  a  new  scientific  movement  is  aflfirmed  and  propagated, 
there  is  in  it,  as  in  every  other  order  of  facts,  a  natural  phenom- 
enon, determined  by  the  historical  conditions  of  time  and  place, 
which  it  is  well  to  indicate  at  the  outset;  for  in  that  way  the  scien- 
tific conscience  of  the  thinker  is  disciplined  and  strengthened. 
The  impressive  and  fruitful  development  of  experimental  philos- 
ophy since  1850,  especially  in  the  biological  and  psychological 
study  of  man,  considered  as  one  of  the  numberless  hnks  of  the 
zoological  chain,  and  in  the  positive  study  of  human  societies 
considered  as  natural  organisms,  had  already  formed  an  intellec- 
tual medium  and  manifested  a  general  trend,  of  which  the  recent 
researches  on  the  phenomena  of  criminality  present  but  one  par- 
ticular aspect.  Beyond  these  general  conditions  of  modern 
scientific  thought  there  was  in  Italy  the  flagrant  and  daily  con- 


2  INTRODUCTION  [§  2 

trast  between  doctrines  of  criminal  law  cievelop>ed  to  the  highest 
degree  of  metaphysical  pedantry,  and  the  frequency  of  crime, 
which  was  considerable,  whether  compared  with  that  found  else- 
where in  Europe,  or  viewed  in  its  periodical  progression.  It  was 
natural,  then,  that  there  should  arise  a  scientific  movement 
which,  by  following  the  experimental  method  of  studying  social 
pathology  in  the  manifestation  of  crime,  would  aim  to  destroy 
this  variance  between  the  theory  of  crimes  and  penalties  and  the 
reality  of  everyday  facts.  From  these  antecedents  was  born  the 
positive  school  of  criminal  law,  with  the  essential  object  of  study- 
ing the  natural  genesis  of  crime,  whether  in  the  delinquent  or  in 
the  surroundings  in  which  he  lives,  in  order  the  more  appro- 
priately to  apply  diflFerent  remedies  to  different  causes.  This 
school  of  positive  criminal  law  has  since  been  a  distinct  and  vig- 
orous branch  of  general  sociology,  under  the  name  of  Criminal 
Sociology.  This  name  I  gave  to  it  in  1882  in  order  that  it  might 
embrace  the  experimental  data  of  anthropology,  of  physio- 
psychology,  of  psychopathology,  and  of  criminal  statistics, 
together  with  the  means  indicated  by  science  (preventive  or 
repressive)  to  combat  the  phenomena  of  crime. 

After  these  general  considerations,  we  may  now  indicate  more 
in  detail  the  historical  causes  of  this  scientific  movement. 

§  2.  The  Classical  Criminal  School  Inaugurated  by  Beccaria. 

Neither  the  Romans,  with  all  their  greatness  in  the  civil  law, 

nor  the  jurists  of  the  Middle  Ages,  were  capable  of  raising  criminal 

law  to  the  dignity  of  a  philosophical  system.     Beccaria,  guided 

more,  it  is  true,  by  sentiment  than  by  a  strictly  scientific  spirit, 

first  gave  an  extraordinary  impluse  to  the  study  of  crimes  and 

punishments  and  he  was  followed  in  the  philosophical  study  of 

the  law  by  a  host  of  thinkers.     Beccaria  summarized  the  ideas 

and  sentiments  of  the  philosophers  and  the  public  opinion  of  his 

time.*    Among  the  different  scientific  currents,  however,  which 

^  See  on  this  subject  Desjardins  "Les  Cahiers  des  fitats  g^n^raux  en  1789  et 
la  l^islation  criminelle  "  (Paris,  1883).  In  the  introduction,  he  sketches  the  state 
of  public  opinion  at  that  epoch  and  shows  that  it  demanded  the  reform  of  the 
criminal  laws.  He  also  speaks  there  of  the  hostility  and  the  charges  of  "social 
upheaval"  which  were  then  encountered  by  the  reformers  of  criminal  law.  The 
present  successors  of  these  reformers,  forgetting  that  they  represent  the  revolu- 
tionaries of  a  century  ago,  have  repeated  exactly  the  same  charges  against  the 
positivist  innovators;  but  they  have  no  more  stopped  the  progress  of  the  new  ideas 
than  their  adversaries  of  former  times  were  able  to  prevent  the  triumph  of  prin- 
ciples which  to-day  are  considered  orthodox. 


§2]        THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  3 

could  have  given  birth  to  his  immortal  work,  there  was  a  pre- 
eminent one,  especially  in  Italy,  which,  with  a  glory  as  brilliant 
as  it  was  legitimate,  became  the  classical  school  of  criminal  law. 
This  school  had  and  still  has  a  practical  object,  the  diminution  of 
punishment  and  to  a  large  extent  its  suppression,  thus  reacting 
with  noble  generosity  against  the  cruel  empiricism  of  the  Middle 
Ages.  It  also  had  and  preserves  a  theoretical  method,  the  "a 
priori"  study  of  crime  as  an  abstract  juridical  being.  Some 
other  theories  defined  themselves  after  1800,  for  example,  the  cor- 
rectionalist  school,  which  Roeder,  among  others,  so  energetically 
defended  under  its  double  aspect  of  moral  and  juridical  reforma- 
tion. Although  this  school  rallied  ardent  and  convinced  adepts, 
especially  in  Germany  and  Spain,  and  to  a  lesser  extent  in  France 
and  Italy,  and  although  it  also  represented  a  generous  resistance 
to  the  medieval  systems  of  reclusion,  still  more  or  less  perpetrated 
among  us,  it  was  short-lived  as  an  autonomous  school.  Two 
concrete  facts  were  adverse  to  it.  The  first  is  that  under  any 
penitentiary  system  whatever,  be  it  harsh  or  mild,  there  are  always 
numerous  types  of  criminals  whose  correction  is  impossible  or 
extremely  difficult  and  unstable,  because  they  are  dominated  by 
an  abnormal  organic  or  psychical  constitution.  The  second  is, 
that  the  original  causes  of  crime  have  their  seat  not  in  the  criminal 
alone,  but  to  a  large  extent  also  in  the  physical  and  social  medium 
which  surrounds  him.  The  reformation  of  the  individual  does 
not  by  itseK  suffice  to  save  him  from  relapse  unless  a  beginning  is 
made  by  suppressing  the  external  causes,  in  reforming  the  medium 
itself  and  especially  the  social  organization.  When  the  reform  of 
the  individual  is  possible,  it  is  obligatory  and  useful,  even  in  the 
view  of  the  positivist  school,  for  certain  categories  of  criminals, 
those,  for  example,  who  have  yielded  to  temptation,  or  been 
carried  away  by  passion.  But  as  the  essential  foundation  of  a 
scientific  theory  the  principle  to-day  no  longer  exists.  The  classi- 
cal school  therefore  remained  predominant  in  Italy,  with  a  few 
personal  differences  of  opinion  on  certain  points,  by  this  or  that 
criminologist,  but  on  the  whole  unified  in  method  and  the  general 
ensemble  of  principles  and  deductions.  While  it  almost  com- 
pletely attained  its  practical  object  in  softening  to  a  very  great 
extent  (and  sometimes  even  unduly)  the  penalties  fixed  by  law, 
in  the  domain  of  theory  it  gave  to  the  scientific  world  after  so 
many  other  masterpieces  of  Italian  criminology,  the  unsurpassed 
work  of  Carrara,  the  "Programma,"  where  from  the  "a  priori" 


4  INTRODUCTION  [§  2 

principle  that  "crime  is  a  juridical  being,  an  infraction  and  not  an 
action,"  there  is  accurately  deduced  with  marvellous  logical  power 
all  the  principal  abstract  juridical  consequences  of  which  this 
principle  is  susceptible.^  The  glorious  scientific  cycle,  opened  by 
Beccaria,  closed  with  Carrara  and  the  most  illustrious  modern 
representatives  of  the  classical  school;  and  while  the  rising  tide  of 
criminality  besets  us  and  the  classical  works,  being  thumbed  in 
vain,  afford  us  only  abstract  juridical  disquisitions  on  crime,  we 
see  in  the  courts  that  the  judges,  the  counsel  for  the  defense  and 
for  the  prosecution,  feel  the  want  and  the  necessity  for  positive 
studies  in  the  anthropology  and  psychology  of  crimes  and  criminals, 
which  of  themselves  may  throw  some  hght  on  the  course  of  penal 
judicial  procedure.^  If  from  the  theory  of  crime  we  pass  to  prac- 
tice, that  is,  the  infliction  of  punishments,  we  find,  as  I  have  said 
elsewhere,^  a  clearly  analogous  process  in  the  history  of  the  classi- 
cal penitentiary  school  If  this  school  seems  less  near  to  its  end, 
it  is  because  it  involves,  beyond  the  ready  and  inexpensive  con- 
structions of  syllogisms,  with  which  the  treatises  and  codes  are 
filled,  the  much  more  expensive  constructions  of  the  architects 
who  build  the  prisons.  Moreover,  it  has  met  with  very  hmited 
appUcation,  especially  in  the  large  European  States,  and  hence 
it  has  not  yet  disclosed  all  that  is  false  in  its  exaggerations.  But 
it  is  certain  that  what  has  already  taken  place  in  the  historical 
evolution  of  the  theoretical  criminal  school,  now  complete,  will 
also  happen,  and  with  the  same  result,  to  the  practical  peniten- 
tiary school. 

1  Carrara,  "Programma"  (6th  Ed.  1886),  Gen.  Part,  preface  I,  21-23,  thus  in 
efifect  explains  his  method:  "The  immense  chain  of  rules  (prohibitive  and  primi- 
tive) must  lead  back  to  one  fundamental  truth.  We  must  find  the  formula  of  this 
principle  and  tie  to  it,  deducing  from  it  particular  precepts.  A  formula  ought  to 
contain  in  itself  the  germ  of  all  the  truths.  ...  I  believe  that  I  have  fotmd 
this  single  sacramental  formula  and  it  seems  to  me  that  I  have  seen  come  out  of  it, 
one  after  another,  the  great  truths  of  penal  law.  I  have  expressed  it  in  saying: 
*Crime  is  not  a  being  in  fact  but  a  juridical  being.'  It  seems  to  me  that  such  a  propo- 
sition opens  the  doors  for  the  spontaneous  evolution  of  all  of  criminal  law,  in  virtue 
of  a  logical  and  infallible  order."  In  my  preliminary  discourse  (University  of  Pisa, 
Jan.,  1890),  "de  Cesar  Beccaria  a  Francesco  Carrara,"  I  indicated  with  more 
detail  the  proofs  of  this  completed  and  exhausted  scientific  evolution  and  of  the 
historic  mission  of  the  classical  criminal  school.  See  my  volume  of  542  pages: 
Ferri,  "Studi  della  Criminalita  ed  altri  saggi"  (Turin,  Bocca,  1901). 

*  For  daily  applications  of  the  positivist  truths  in  the  fimctioning  of  penal 
justice,  see  my  volume,  "  Difese  penali  e  studi  di  Giurisprudenza,"  Turin,  Bocca, 
1899. 

'  Ferri,  "Lavoro  e  Celle  dei  condannati"  in  the  volume  "Studi  della  Crimi- 
naUtA  ed  altri  saggi "  (Turin,  Bocca,  1904). 


§4]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  5 

§  3.  The  Classical  Penitentiary  School  Inaugurated  by  Howard. 

A  few  years  after  the  great-minded  initiative  of  Beccaria  in 
Italy,  virtuous  John  Howard  began  a  similar  movement  in  Eng- 
land. For  this  it  sufficed  him  eloquently  to  depict  the  pitiable 
conditions  of  material  filth  and  moral  corruption  in  which  most 
convicts  wallowed  in  the  various  European  prisons  visited  by 
him;  and  to  describe  with  enthusiasm  the  first  attempts  at  isola- 
tion in  cells,  inaugurated  by  the  Abbe  Franchi,  at  Florence  (1667), 
by  Pope  Clement  XII  at  Rome  (prison  of  St.  Michael,  1703), 
subsequently  imitated  by  the  Empress  Maria  Theresa  in  the 
house  of  correction  with  140  cells  at  Milan  (1759),  and  then  by 
the  Viscount  Alain  XIV  in  the  celled  prison  at  Ghent  (1775). 
This  movement  carried  across  to  America,  developed  there  and 
reiraported  into  Europe,  became  the  penitentiary  school,  in  both 
its  discipline  —  summed  up  in  the  formula  of  three  words, 
isolation,  labor,  instruction  (especially  religious)  —  and  in  its 
architecture,  which  became  immovably  fixed  in  the  system  that 
Bentham  (inventing  and  presenting  it  to  the  English  Parliament 
and  afterwards  to  the  French  Assembly)  termed  "panoptic"  on 
account  of  the  radial  galleries  which  permitted  the  eye  of  a  guard 
placed  at  the  center  of  the  formidable  human  hive  to  watch  over 
all  of  it.  The  spirit  of  reform  was  in  the  air  in  the  year  1800.  It 
was  at  this  period  that  Valsava  at  Bologna,  Daquin  in  Savoy, 
Chiarugi  in  Tuscany,  simultaneously  with  Pinel  in  France,  and 
Tuke  in  England,  undertook  the  great  modern  reform  in  the 
treatment  of  the  insane.  These  unfortunates,  who  had  formerly 
been  kept  in  irons  and  loaded  with  chains  (according  to  the  exist- 
ing philosophical  ideas  which  made  insanity,  like  crime,  a  fault  of 
the  individual),  were  thenceforward  in  most  instances  treated 
with  mildness  and  enjoyed  a  relative  liberty,  to  which  lately  has 
been  added  the  wholesome  hygiene  of  labor.  There  was  thus  a 
humanitarian  impulse  of  reforms  for  the  insane  also  which  pro- 
duced the  modern  school  of  psychiatry,  vivified  for  many  years 
past  by  the  experimental  method. 

§  4.  Beccaria  and  Howard  and  Their  Limitations. 

But,  to  return  to  crimes  and  penalties  —  the  two  classical 
schools  had  exactly  the  same  starting  point,  the  same  direction, 
and  the  same  destination. 

The  school  of  Beccaria  in  the  field  of  juridical  principles,  and 


6  INTRODUCTION  [§4 

the  school  of  Howard  in  that  of  disciplinary  prison  rules,  both 
caused  an  abundant  resistance  to  the  legislative  and  adminis- 
trative horrors  which  were  perpetrated  from  the  Middle  Ages 
down  to  the  approach  of  the  French  Revolution.  These  common 
protests  against  the  laws  and  prisons  of  the  period  were  received 
with  unanimous  applause,  and  were  carried  in  parallel  directions 
by  the  tide  of  humanitarian  sentiment  to  the  point  of  exaggera- 
tion. The  disciples  of  Beccaria,  in  studying  crime  in  itself  as  an 
abstract  juridical  form  detached  from  the  actual  world,  where  it 
is  so  deeply  rooted,  proposed  as  their  aim  (which  they  afterwards 
attained)  the  general  diminution  of  the  penalties  prescribed  by 
the  codes  and  the  suppression  even  of  a  great  number  of  them, 
which  were  incompatible  with  the  moral  sense  of  modern  peoples. 
The  successors  of  Howard  studied  the  prison  system  in  and  by 
itself,  without  concerning  themselves  about  the  world  whence 
came  the  convict  and  where  his  victims  remained.  Their  object 
was  the  betterment  of  prison  life  and  they  also  were  successful 
in  accompHshing  this. 

It  is  time  however  to  recall  what  they  forgot,  guided  and  ani- 
mated as  they  were  by  sentimental  aspirations  which  in  truth  are 
more  effective  than  the  counsels  of  calm  reason.  They  were 
too  exclusively  preoccupied  with  the  fate  of  the  criminal  after  the 
commission  of  his  crime  and  their  attention  and  the  sohcitude  of 
the  philanthropic  public  were  deflected  from  a  much  more  con- 
siderable mass  of  unfortunates,  who  lead  an  unhappy  existence  in 
our  midst,  but  who  have  a  moral  superiority  over  the  deHnquents 
in  that  they  are  honest  and  remain  honest.  The  attention  of 
legislators  and  philanthropists  has  hitherto  been  too  exclusively 
directed  to  the  individuals  who  by  some  degeneracy  of  their  physi- 
cal or  psychical  organization  and  under  the  action  of  a  corrupt 
social  medium  have  rebelled  against  external  conditions  with  a 
malevolent  and  criminal  activity,  —  while  this  same  medium,  this 
same  want  of  education  and  moral  training,  this  same  misery 
pressing  with  equal  weight  on  so  many  millions  of  men,  has  not 
driven  them  to  robbery  and  homicide;  nay,  all  the  temptations, 
all  the  sufferings  breaking  against  a  well-tempered  moral  sentiment 
have  at  most  incited  in  a  few  the  sad  protest  of  suicide.  It  is 
time,  therefore,  that  the  humanitarian  sentiment  of  our  epoch, 
which  until  now  has  often  gone  astray  in  showing  an  excessive 
solicitude  for  delinquents,  or  even  in  protecting  animals  with  an 
imreasonable  sensibiUty,  should  return  to  the  great  highway  of 


§5]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  7 

justice  and  truth.  In  this  way,  existing  society  will  be  able  to 
fulfill  its  mission.  It  will  no  longer  strive  by  the  alms  of  the 
monks  of  the  Middle  Ages,  nor  by  the  violent  denial  of  the  laws 
of  social  evolution  to  comfort  all  this  misery,  which  in  countless 
forms  obscures  the  luster  of  our  civilization  with  so  many 
shadows. 

§  6.  The  Positive  Method. 

This  is  why  a  new  movement  in  criminal  science  has  been  form- 
ing for  some  years  past.  With  respect  to  anthropology  it  was 
begun  by  Lombroso,  and  was  immediately  afterwards  asserted  on 
behalf  of  juridical  sociology  by  a  person  whose  name  is  immaterial 
and  who,  in  a  work  published  in  1878  (which  perhaps  bears  evi- 
dence of  immaturity),  "announced  his  intention  of  applying  the 
positive  method  to  the  science  of  criminal  law."  The  develop- 
ment of  the  sociological  side  of  the  new  researches  was  empha- 
sized, and  to  this  study  the  name  of  criminal  sociology  was  given. 
At  the  same  period,  Garofalo  was  studying  and  developing  pref- 
erentially those  inductions  of  the  new  school  which  were  more 
peculiarly  legal.  It  is  a  law  of  the  human  mind  that  every  innova- 
tion, in  whatsoever  class  of  facts,  arouses  the  distrust  of  those  who 
witness  its  first  attempts.  This  conservative  sentiment  is  not 
only  legitimate  but  is  necessary  in  the  selection  of  ideas,  pro- 
vided, of  course,  that  it  does  not  go  so  far  as  to  adopt  the  strange 
illusion  of  wishing  to  obstruct  every  further  aspiration  of  progress. 
These  aspirations  are  themselves  legitimate  and  needful  to  the 
welfare  of  society  whose  life  is  precisely  the  product  of  these  two 
opposed  tendencies  which  aim  at  the  same  end.  It  is  in  this 
sense  that  Spencer  said  that  all  progress  accomplished  i»  an 
obstacle  to  future  progress:  for,  every  man  who  has  consecrated 
his  life  to  the  realization  of  any  reform  or  amelioration  whatsoever, 
naturally  falls  into  the  illusion  (from  which  only  some  specially 
favored  minds  escape)  of  believing  that  the  last  word  in  human 
progress  has  been  said. 

Each  thinks  that  he  has  taken  the  last  step,  and  the  revolu- 
tionary of  yesterday  becomes  the  conservative  of  to-day.  Thus 
it  is  that  the  person  mentioned  as  having  declared  the  necessity 
of  renovating  the  criminal  law  has  seen  rain  upon  him  charges 
of  "scientific  nihilism,"  of  "neomania,"  and  of  "moral  and  social 
upheavals,"  and  so  on.  Nevertheless  that  person,  drawn  by 
his  studies  into  the  reahn  of  juridical  research,  did  but  collect 


8  *  INTRODUCTION  [§5 

and  coordinate  ideas  which  were  already  broadcast  in  the  other 
natural  and  psychological  sciences.  He  only  expressed  a  senti- 
ment ripened  by  a  long  period  of  incubation,  and  already  very 
active  in  the  mind  of  the  community,  that  there  was  disaccord 
between  a  mass  of  juridical  abstractions  and  the  palpitating 
realities  of  the  Courts  of  Assize  and  other  tribimals.  He,  I 
say,  continued  his  study  and  perceiving  in  these  very  contra- 
dictions a  psychological  phenomenon  which  was  natural  and 
therefore  inevitable,  he  permitted  his  ideas  spontaneously  to 
follow  their  evolution.  Now,  the  idea  maintained  in  the  field 
of  anthropology  by  Lombroso  and  by  that  same  person  in  the 
field  of  legal  sociology  has  spread  with  surprising  rapidity,  and 
both  in  Italy  and  abroad  has  found  among  jurists,  naturalists, 
and  sociologists  an  increasingly  numerous  and  united  phalanx  of 
partisans.  This  has  given  it  the  right  to  declare  itself  hence- 
forth as  a  new  scientific  school:  and  this  school,  notwithstand- 
ing some  differences  of  opinion  (unavoidable  in  the  observation 
of  natural  phenomena,  and  consequently  such  as  are  found  in 
all  the  positive  sciences),  has  nevertheless  a  common  method  and 
direction,  as  well  as  a  common  source  of  ideas  and  aspirations. 

This  is  due  not  so  much  to  any  special  merit  of  its  first  pro- 
moters as  to  the  fact  that  it  needed  nothing  to  develop  and 
spread  it  but  a  candid  declaration,  since  it  was  and  is  in  the  air 
that  we  breathe  and  since  it  was  and  still  remains  the  last  ex- 
pression of  a  painful  disagreement,  evident  from  the  beginning, 
between  the  mass  of  criminal  theories  and  practical  justice. 
The  impotence  of  punishment  to  repress  crimes,  in  spite  of  the 
prodigality  of  effort  and  expense  that  it  has  entailed,  —  the 
ever  increasing  number  of  habitual  criminals,  —  the  dangerous 
and  sometimes  absurd  contrast  between  facts  of  psychiatry  and 
the  mystical  theories  of  the  moral  responsibility  of  man,  —  the 
arrested  development  or  exaggeration  in  the  forms  of  procedure, 
—  the  introduction  into  this  superannuated  procedure  of  new 
institutions  which  do  not  fuse  with  it,^  — all  this,  and  still  other 
reasons,  demanded  and  still  demand  a  scientific  and  legislative 
remedy.  Such,  then,  is  the  cause  for  the  new  course  of  criminal 
law.  And  this  new  study,  we  may  observe,  makes  no  pretension 
to  destroy  all  that  has  been  done  hitherto  in  either  science  or 
practice:    on   the   contrary,  it   shows   a    progressive   evolution 

^  Cf.  Escobeto.  "H  titolo  per  la  costituzione  di  parte  civile  specie  in  rapporto 
ai  sindacati  professionali  "  (Citt4  di  Castello,  1912). 


§5]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  9 

of  this  very  same  criminal  science;  it  seeks  to  bring  about  a 
renovation  in  the  supreme  function  of  penal  justice  that  will 
render  it  truly  humane  in  the  highest  and  most  accurate  sense. 
Above  all,  we  must  eliminate  the  incomplete  idea  expressed  by 
certain  eclectic  jurists,  and,  at  first  by  Lombroso  himself,^  that 
the  new  school  is  only  a  partial  union  and  sympathetic  alliance 
between  penal  law  and  criminal  anthropology.  It  is  something 
more  than  that  with  a  much  broader  scientific  and  practical  scope. 
It  is  the  application  of  the  experimental  method  to  the  study  of 
crimes  and  punishments,  bringing  new  life  into  the  narrow 
field  of  abstract  legal  technicality  through  the  discovery  of  new 
facts  (revealed  not  only  by  criminal  anthropology  but  also 
by  statistics,  by  psychology,  and  sociology).  It  represents 
really  a  new  phase  in  the  evolution  of  criminal  science.^  In 
Italy,  the  positive  method  has  long  been  followed,  since  it  arose 
during  the  Renaissance  from  the  labors  of  Galileo  and  his  associ- 
ates. The  application  of  this  method,  quietly  made  in  the  differ- 
ent physical  sciences,  aroused  a  great  deal  of  opposition  when 
carried  into  the  field  of  social  and  moral  studies;  and  yet  it  is 
evident  that  if  this  method  is  so  fruitful  in  some  sciences,  there 
is  no  reason  why  it  should  not  be  in  all  others.  All  sciences  have 
a  common  foundation  and  an  identical  object:  the  study  of 
nature  and  the  discovery  of  her  laws  for  the  profit  of  humanity. 
Indeed,  this  is  so  true  that,  under  the  traditional  "a  priori" 
method,  philosophy,  as  Spencer  says,  was  only  a  succession  of 
continual  suicides,  as  each  philosopher  overturned  the  preceding 
system  to  build  his  own,  destined  in  turn  to  be  destroyed  by  its 
successor.  With  the  experimental  method,  on  the  contrary, 
discoveries  once  made  and  verified  stand  forever,  and  are  inde- 
structible with  respect  to  the  facts  from  which  they  have  been 
drawn.     While  in  metaphysical  philosophy,  there  is  too  often 

^  Lombroso,  "Ueber  den  Ursprung,  das  Wesen  und  die  Bestrebimgen  der  neuen 
anthropologisch.  Kriminalistischen  Schule  in  Italian,"  in  the  "Zeitschrift  fiirdie 
ges.  Strafrw.,"  1881,  I,  1. 

^  On  this  point  see  Fioretti,  "Demieres  publications  des  chefs  d'ecole  de  la 
doctrine  positiviste,"  in  the  "Rassegna  Critica"  (Naples,  1885),  V,  2;  and  also 
"Polemique  pour  la  defense  de  I'ecole  criminelle  positive,"  by  Lombroso,  Ferri, 
Garofalo,  Fioretti  (Bologne,  1886),  pp.  215  et  seq. 

In  the  conclusion,  after  having  shown  the  principal  inductions  of  criminal 
sociology,  I  shall  mention  more  particularly  the  opinions  of  Puglia,  Liszt,  Gar- 
raud,  and  others,  who  think  that  criminal  sociology  should  remain  distinct  from 
criminal  law  in  respect  to  technique,  serving  the  latter  as  an  auxiliary  or  comple- 
mentary science,  instead  of  being  the  broadest  science  of  which  law  is  only  <Hie 
chapter,  —  the  juridical  chapter. 


10  INTRODUCTION  [§  5 

absolute  opposition  between  incompatible  systems,  sprung  en- 
tirely from  the  logical  phantasy  of  thinkers,  in  positive  philosophy, 
there  are  only  partial  differences  of  personal  interpretation,  and  the 
unity  of  common  foundation  as  well  as  the  unity  of  the  facts  ob- 
served remains. 

But  we  find  even  here  a  psychological  law  which  requires  man 
to  preoccupy  himself  with  sciences  which  are  the  nearest,  or 
which  appear  to  be  the  nearest,  to  his  own  sentiments  and  per- 
sonal interest,  hence  it  was  that  when  GaUleo  postulated  the  em- 
ployment of  the  p>ositive  method  in  the  physical  sciences,  there 
was  Uttle  protestation  or  distrust,  except  on  the  part  of  those  who 
found  certain  discoveries  to  be  in  opposition  to  their  beUefs  or 
their  academic  prejudices,  and  the  interest  of  their  caste.  But 
on  the  whole,  so  long  as  this  method  was  limited  to  the  sciences 
which  do  not  touch  man  himself,  like  astronomy,  physics,  chem- 
istry, geology,  botany,  etc,  it  did  not  encounter  much  opposition. 
Later,  in  our  own  time,  came  Claude  Bernard,  who  wished  to 
apply  this  method  to  human  physiology  and  to  upset  the  old 
metaphysical  imaginings,  such  as  Vitalism.  Once  more  murmurs 
arose  but  quiet  was  soon  restored,  because  physiology  seemed  to 
have  very  Uttle  to  do  with  the  moral  life  of  man.  But  the  strife 
was  indeed  tumultuous  when  Comte  in  France,  Spencer  in  Eng- 
land, Ardigo  in  Italy,  and  Wimdt  in  Germany,  sought  to  extend 
the  positive  method  to  the  moral  and  psychological  study  of  man. 
Customary  and  hereditary  sentiments,  religious  beliefs,  were 
thought  particularly  threatened  by  this  attempt.  Happily,  com- 
mon opinion,  rehgion,  and  science  develop  in  very  different 
spheres.  It  is,  however,  true  that  as  the  domain  of  science  en- 
larges, the  narrower  becomes  that  of  the  great  common  opinion 
and  of  reUgion;  since,  with  the  individual,  as  with  humanity, 
intelligence  and  sentiment  as  a  general  rule  advance  inversely. 
At  least,  when  the  development  of  intelligence  is  uppermost,  it 
dominates  and  transforms  sentiment,  if  it  does  not  stifle  it. 
Indeed,  if  one  wished  to  establish  a  sort  of  psychological  scale  of 
man,  from  the  point  of  view  of  knowledge,  one  might  say  that 
there  is  first  present  in  him  the  common  observation  of  natural 
phenomena,  unconnected  and  unrelated,  and  this  is  the  lower 
degree  beyond  which  comes  science,  which  is  only  the  coordinated 
and  systematic  observation  of  facts.  And  in  the  highest  problems 
of  life  which  science  cannot  solve,  faith,  due  to  the  vague  intuition 
of  the  unknown,  governs.     But  psychology  itself  has  now  become 


§6]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  11 

a  positive  science,  the  world  is  adaptable  to  it,  and  from  it  the  new 
generations  toil  one  after  another  to  develop  more  and  more  the 
new  life. 

§  6.  The  Positive  Method  and  The  Social  Sciences. 

When  it  was  sought  subsequently  to  apply  the  same  positive 
method  to  the  social  sciences,  and  particularly  to  those  which 
touch  most  closely  everyday  life,  —  that  is,  political  economy 
and  penal  law,  —  the  suspicions  and  resistance  grew  immeasur- 
ably, because  there  was  seen  in  it  a  threat  of  an  economic  and 
juridical  upheaval  of  society.  Now  when  interests  believe  them- 
selves in  danger,  they  will  not  permit  ideas  peaceably  to  take  their 
course  and  produce  their  beneficial  effects.  But  what  reason 
can  there  be  to  deny  to  the  social  and  juridical  sciences  this  ex- 
tension of  the  positive  method,  which  has  already  rendered  such 
great  service  in  all  the  other  orders  of  science?  Certainly  none, 
at  least  for  him  who  can  raise  himself  to  a  high  and  serene  out- 
look over  the  scientific  evolution  of  our  epoch.  In  fact,  at  every 
step  in  our  day  we  meet  examples  of  this  continual  extension  of 
the  positive  method,  founded  upon  observation  and  experience, 
to  every  branch  of  human  knowledge. 

Even  outside  of  science,  we  witness  at  this  moment  a  new 
movement  in  modern  art,  in  which,  always  in  the  name  of  the 
method  of  observation,  the  study  of  truth  and  hfe  is  substituted 
for  arbitrary  romantic  and  academic  types,  and  thus  a  progres- 
sive evolution  is  being  accomplished  which  justly  places  the  hfe 
of  art  in  harmony  with  the  rhythm  of  modern  thought.^  But 
to  remain  in  the  domain  of  science,  there  are  other  examples  which 
fortify  our  opinion  and  support  it  on  the  indisputable  authority 
of  experience. 

It  is  well  known  that  until  the  beginning  of  the  nineteenth 
century,  and  even  later,  practical  medicine  had  always  followed  a 
method  which  was,  so  to  speak,  metaphysical  and  abstract. 
Medicine  concerned  itself  only  with  nosology;  that  is  to  say,  one 
studied,  described,  and  treated  diseases  as  abstract  entities  in 
an  abstract  fashion.  The  physician  gave  secondary  considera- 
tion to  the  patient  and  was  preoccupied  solely  in  discovering 
the  affection  which  altered  health.  If,  for  example,  he  was  con- 
vinced that  he  had  to  do  with  a  fever,  with  erysipelas,  or  with 

1  Ferri,  "Les  criminels  dans  I'art."  French  translation  (Paris,  F.  Alcan,  2d 
ed.  1901). 


12  INTRODUCTION  [§  7 

pleurisy,  he  abstracted  entirely  from  the  patient,  called  in  his 
knowledge  of  nosology  and  fought  the  fever,  erysipelas,  or  pleu- 
risy in  itself,  as  if  it  were  a  real  being.  It  made  little  difference 
whether  the  patient  was  of  sanguine,  lymphatic,  or  nervous  tem- 
perament, or  whether  there  were  any  antecedents,  hereditary  or 
personal,  of  dissipation  or  denutrition,  or  whether  the  external  or 
internal  cause  of  the  organic  disorder  was  this  or  that.  Pleurisy 
was  pleurisy,  and  as  such  it  was  fought.  Subsequently  a  new 
tendency  was  introduced,  consisting  in  the  observation  of  facts. 
Then  the  point  was  reached  of  studying  alone  all  the  Hving  person 
of  the  patient,  his  antecedents,  habits,  and  organic  manifesta- 
tions. By  the  new  processes,  experimental  in  character,  such 
as  ascultation,  percussion,  temperature  tests,  the  analysis  of 
urine,  and  so  on,  medicine  banished  from  its  science  and  practice 
its  former  abstract  tendency.  The  morbid  entities  were  dis- 
carded and,  instead  of  treating  the  maladies,  the  patients  were 
treated;  hence,  to-day,  the  same  disease  may  be  treated  by  entirely 
different  means,  when  the  circumstances  and  the  individual 
present  different  conditions.  It  is  well  known  that  Bufalini,  in 
the  field  of  theory,  and  Concato,  Tommasi,  and  others,  following 
the  example  of  German  medical  men,  were  the  standard  bearers 
in  Italy  of  the  positive  method  in  use  at  present,  as  Lombroso 
was  among  the  first  to  borrow  from  the  Germans  and  introduce  to 
Italy  the  experimental  method  in  psychiatry.  Formerly,  mental 
diseases  also  had  been  combated  in  themselves,  as  having  their 
own  existence,  such  as  mania,  melancholia,  or  dementia,  but  soon, 
in  spite  of  resistance  and  ridicule  (always  inevitable  at  the  be- 
ginning), alienists  began  to  understand  that  the  insane  patient 
and  not  the  Lasanity  was  to  be  treated,  by  employing  all  of  the 
means  which  properly  compose  the  arsenal  of  modern  psychiatry. 

§  7.  The  Application  of  the  Positive  Method  to  Criminal  Law. 

Indeed,  who  does  not  see  how  much  analogy  there  is  between 
this  happy  and  useful  transformation  in  the  medical  sciences  and 
that  which  the  new  school  represents  in  criminal  law,  which  indeed 
should  be  a  social  pathology  and  a  clinic?  Criminal  law,  also,  has 
until  now  consisted  in  the  study  of  crimes  considered  as  abstract 
entities.  Until  now  the  criminologist  has  studied  robbery,  homi- 
cide, and  forgery,  in  and  for  themselves,  as  "juridical  entities,"  — 
as  abstractions  He  studied  them  with  the  sole  aid  of  abstract 
logic  and  sentiments  suitable  to  an  honest  man,   which  were 


§7]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  13 

wrongfully  believed  to  be  imputable  to  criminals  For  each 
crime  (as  the  result  of  a  calculation,  which  several  of  the  best- 
advised  criminologists  proclaim  a  scientific  impossibility)  there 
has  been  established  a  punishment  fi^ed  in  advance,  in  the  same 
way  that  a  remedy  was  determined  in  advance,  strictly  prescribed 
and  dosed  for  each  disease.  To  the  classical  criminologist,  the 
person  of  the  criminal  is  an  entirely  secondary  element,  as  the 
patient  formerly  was  to  the  physician:  he  is  only  a  subject  to 
whom  theoretical  formulae,  theoretically  conceived,  are  applied; 
he  is  an  animated  manikin,  on  the  back  of  which  the  judge  places 
the  number  of  a  section  of  the  penal  code,  and  the  prisoner  him- 
self becomes  a  number  by  the  execution  of  the  sentence.  The 
criminologist,  like  the  physician  of  the  old  school,  was,  of  course, 
obliged  in  spite  of  all,  to  consider  the  transgressor,  by  reason  of 
certain  personal  conditions,  too  evident  to  be  neglected,  which 
modified,  it  was  claimed,  the  moral  responsibility  of  the  man. 
With  respect  to  all  else  —  organic  and  psychic  conditions 
surrounding  the  delinquent,  except  for  a  small  number  of  mani- 
fest circumstances,  expressly  enumerated  (minority,  deaf-mutism, 
insanity,  intoxication,  uncontrollable  outbreak  of  passion)  influ- 
ences of  heredity  and  family,  conditions  of  physical  and  social 
environment,  which  constitute  the  inseparable  antecedents  of  the 
person  of  the  criminal,  and  consequently  of  his  acts  —  to  these 
the  criminologist  remained  an  entire  stranger.  He  was  con- 
cerned with  the  crime  and  not  with  the  criminal,  and  conducted 
himself  exactly  in  the  manner  of  the  physicians  of  the  past.  I 
do  not  maintain  that  all  this  study  of  crime  in  itself,  considered 
as  a  juridical  being,  has  been  futile;  nor  do  I  contend  that  medi- 
cine, even  after  its  transformation,  has  not  derived  some  advan- 
tage from  the  nosological  studies  of  former  days;  but  I  do  maintain 
that  this  abstract  study  of  crime,  considered  independently  of  the 
person  of  the  delinquent,  does  not  suffice  to-day.  In  consequence, 
one  can  understand  the  reason  of  this  evolution  in  criminal  science, 
wherein  crime  in  itself  assuredly  continues  to  be  studied,  but  only 
after  first  studying  the  criminal  with  the  aid  of  all  of  the  means 
which  the  positive  method  can  properly  afford  us.^ 

1  This  is  in  reply  to  those  critics,  who,  taking  refuge  in  the  convenient  system 
of  falsifying  the  ideas  of  their  adversaries  to  obtain  an  easy  and  unimportant  vic- 
tory, reproach  the  new  school  with  wanting  to  substitute  the  study  of  the  criminal 
for  that  of  crime.  We  only  say  that  before  studying  crime  as  a  juridical  fact,  it 
should  be  studied  as  a  natural  and  social  phenomenon,  and  in  consequence  we 
must  first  study  the  person  who  commits  crime  and  the  medium  in  which  he  com- 


14  INTRODUCTION  [§  8 

§  8.  The  Failure  of  Classical  Criminology. 

Only  ask  the  criminologist  why,  for  example,  according  to  his 
science,  every  year  there  are  committed  in  Italy  three  or  four 
thousand  homicides,  while  there  are  less  in  other  countries  with 
greater  population;  or  how  it  happens  that  while  no  year  is  ever 
free  from  homicides  there  are  not  four  hundred  thousand;  or 
what  according  to  his  science  can  be  the  proper  remedies  to  sup- 
press, or  at  least  retard  the  increase  of  homicides.  Ask  this,  I 
say,  of  a  classical  criminologist  and  he  can  make  you  no  answer, 
because  his  science  has  not  contemplated  these  problems,  or  has 
given  them  only  an  indirect  response,  as  ready  as  it  is  unscientific. 
It  advances  as  an  impHcit  postulate  that  the  commission  of 
crimes  dei)ends  on  the  free  will  of  men  to  commit  them  or  not  — 
to  commit  them  in  one  way  or  in  another  —  or  to  commit  them 
in  greater  or  less  numbers.  This  is  how  any  further  study  of  the 
natural  causes  of  this  social  phenomenon  is  atrophied.  The 
classical  criminologist,  however,  is  able  to  say  when  a  crime  is 
attempted,  fails,  or  is  accomphshed  —  whether  aggravated  or 
whether  there  is  extenuation;  and  this  knowledge  will  also  in  the 
end  be  useful  to  us.  But,  in  the  meantime,  he  stands  mute  before 
the  most  urgent  problems  of  which  modern  society  demands  a 
practical  and  effective  solution.  If  it  be  answered  that  criminal 
science  has  given  punishments  as  a  remedy  for  crime,  we  in  turn 
may  observe  that  these  punishments  in  every  system  of  reclusion 
have  so  far  fallen  short  of  the  object  sought  and  the  results  hoped 
for,  that  we  actually  see  again  in  this  the  most  urgent  necessity  of 
facing  what  Holtzendorff,  himself  a  classical  criminologist,  calls 
"the  bankruptcy  of  the  existing  penal  system,"  x\nd  it  could 
not  be  otherwise  under  the  "a  priori"  method  which  makes  pun- 
ishment the  conclusion  of  an  abstract  syllogism  and  not  that  of  the 
positive  study  of  facts. 

Until  now  the  criminologist  has  closeted  himself  in  the  con- 
science of  the  honest  man  from  the  height  of  which  he  has 
judged  and  regulated  the  world  of  delinquents,  starting  with  the 
idea  that  they  are  all  men  like  himself.     He  has  established 

mits  it  and  afterwards  study  juridically  the  crime  committed,  not  as  an  isolated 
being  existing  in  itself  but  as  an  index  of  the  organic  and  psychic  temperament  of 
its  author.  Thus,  as  positive  medicine  studies  disease  in  the  sick  person,  so  the 
criminal  sociologist  must  study  crime  in  the  criminal.  See  Ferri,  "Uno  spiritista 
del  diritto  penale,"  in  "Archiva  del  diritto  psichico,"  VIII,  1  and  2,  and  in  the 
"Studi  della  criminality  ed  altri  saggi  "  (Turin,  Bocca,  1901). 


§8]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  15 

the  "a  priori"  principle:  man  by  nature  tends  to  good,  and 
if  he  does  evil  it  is  by  ignorance  or  wickedness  and  by  a  free  de- 
termination of  his  will.  He  logically  deduces  the  consequence 
that  the  evil  inclination  of  the  will  must  be  met  with  a  psycho- 
logical obstacle,  which,  presenting  a  painful  character  on  the  one 
hand  tends  to  restrain  the  man  animated  with  an  evil  intent, 
and  presenting  the  character  of  a  legal  sanction  on  the  other 
hand  serves  to  "reassert  the  right  violated  by  the  crime."  On 
the  surface  the  reasoning  is  quite  logical:  but  it  does  not  re- 
spond to  the  facts  which,  whether  observed  in  prisons,  insane 
asylums,  or  elsewhere,  tell  a  different  story;  namely,  that  there 
are  many  men  who  have  no  repugnance  for  what  honest  people 
call  evil  or  crime;  who  see  in  robbery  only  a  trade  which  has  its 
dangers  (prison)  like  other  professions;  who  look  upon  homicide 
not  as  a  crime  but  as  the  exercise  of  a  right,  or  at  least  as  an  un- 
important act.  And  we  ourselves  have  heard  such  declarations 
made  by  convicts  in  prison,  who  would  have  every  reason  to  show 
repentance,  but  who,  far  from  it,  proclaim  boldly  that,  given 
their  liberty,  they  would  immediately  resume  a  career  of  robbery 
or  kill  the  witnesses  who  testified  against  them  or  the  victim  who 
escaped  them.     Of  course,  all  delinquents  are  not  of  that  kind. 

In  any  event  the  fact  remains  that  men  who  are  not  insane, 
in  the  medical  sense  of  the  word,  think  and  feel  in  a  way  directly 
opposed  to  that  assumed  by  the  criminologists  who  naturally  feel 
and  think  as  honest  men  and  have  no  idea  that  one  may  think  and 
feel  otherwise.  These  same  delinquents  will  tell  you  that  to  them 
punishment  is  simply  a  professional  inconvenience,  like  a  fall  from 
a  roof  for  a  roofer,  or  the  explosion  of  fire-damp  for  the  miner; 
they  will  add  that  they  often  "get  away  with  it"  successfully; 
and  conclude  that  even  if  caught  and  punished  (which  they  rarely 
are,  because  of  every  hundred  criminals  thirty  remain  unknown 
and  thirty  others,  unpunished),  two  months,  a  year,  or  five  years 
of  prison  is  not  so  great  a  misfortune.  The  facts  do  not  confirm 
the  idea  which  the  honest  man  forms  of  imprisonment,  since  in  his 
eyes  it  means  both  suffering  and  disgrace,  whereas,  up  to  the  pres- 
ent time  many  delinquents  see  in  it  only  a  means  of  finding  them- 
selves in  the  company  of  a  lot  of  comrades  and  of  living  at  the 
expense  of  the  State. 

In  practical  medicine,  when  experience  demonstrates  that  a 
certain  remedy,  formerly  thought  effective,  proves  non-effective, 
it  is  abandoned  for  others;   so  in  like  manner  in  the  science  which 


16  INTRODUCTION  [§  9 

rules  the  sovereign  function  by  which  society  protects  itself  against 
crime,  if  the  punishments  hitherto  in  use  do  not  attain  their  object, 
they  should  be  abandoned  for  other  remedies  which  shall  not  differ 
merely  in  appearance,  form,  or  name,  but  which  shall  be  less  il- 
lusory, less  stupid,  less  expensive,  and  finally,  more  humane  for 
the  convict  as  weU  as  for  society  at  which  he  strikes.  What 
occurs  in  the  actual  practice  is  that  after  the  commission  of  the 
crime,  the  criminal  if  he  shoidd  be  discovered  (which  is  far  from 
always  being  the  case),  is  put  in  prison  and  there,  usually  unem- 
ployed, charges  the  taxpayers  with  a  new  burden  to  maintain 
him  in  an  idleness  which  brutalizes  him,  ruins  his  health,  and 
makes  him  less  fitted  for  social  life.  But  as  new  and  more  effi- 
cient remedies  can  not  be  invented  by  means  of  abstraction  and 
syllogism,  they  must  be  found  by  positive  research,  that  is,  by 
the  new  method  which  alone  has  made  criminal  science  a  true 
social  and  positive  science.^ 

§  9.  The  Positive  Method  in  Political  Economy. 

There  is  another  very  eloquent  example,  even  more  nearly 
related  to  the  juridical  sciences,  which  also  confirms  by  anticipa- 
tion the  opportunity  and  the  utiUty  of  the  principles  which  we 
would  apply:  it  is  the  example  offered  by  Political  Economy. 
Adam  Smith  may  be  said  to  have  done  for  political  economy  what 
Cesar  Beccaria  did  for  criminal  law.  They  inaugurated  two  great 
and  glorious  scientific  currents,  similar  in  their  noble  spirit  of 
reaction  against  the  empiricism  of  the  Middle  Ages.  Each  raised 
the  banner  of  individuahsm,  the  former  in  preaching  free  compe- 
tition, the  latter  in  defending  the  rights  of  humanity  against  the 
tyranny  of  the  State  in  the  field  of  criminal  law.  Both  of  these 
classic  schools  conferred  great  blessings  on  humanity,  but  each, 
to-day,  has  finished  its  glorious  course.  They  attained  and, 
it  may  be,  exceeded  their  purpose. 

Adam  Smith  and  his  school,  using  the  "a  priori"  method, 
studied  economic  phenomena  —  consumption,  production,  and 
distribution  of  wealth  —  as  abstract  beings  unvarying  at  all 
times  and  in  all  places.  They  formulated  laws  which  they  de- 
clared universal,  absolute,  and  immutable.      They  started  with 

*  I  say  once  for  all  that  if  we  call  our  school  "positive"  it  is  not  because  it  fol- 
lows a  philosophical  system,  more  or  less  like  that  of  Comte,  but  only  because  of 
the  method  (observation  and  experiment)  which  we  propose  to  apply. 

See  Schinz.  " Le  positivism  est  une  methode  et  non  un  systeme,"  in  the  "Revue 
philosophique,"  January,  1899,  p.  63. 


§9]       THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  17 

one  great  principle:  Man  always  seeks  happiness  and  from 
logical  deduction  they  derived  the  ultimate  consequences  — 
general  laws.  But  for  a  number  of  years,  at  first  in  Germany 
and  then  elsewhere,  a  heterodox  movement  arose  in  the  science 
of  political  economy.  This  gave  birth  to  the  realistic,  histor- 
ical, or  positive  school.  It,  too,  has  had  some  famous  repre- 
sentatives, whom  the  Prussian  deputy  Oppenheim  called  State 
Socialists.  Cusumano  twenty  years  ago  introduced  the  doctrine 
in  Italy  with  much  enthusiasm.  This  new  evolution  has  now 
spread  everywhere,  as  Laveleye  ^  and  others  bear  witness,  and  has 
found  complete  expression  in  the  socialistic  doctrines  which  Marx 
had  even  earlier  outlined  with  a  strict  and  vigorous  positivist 
method.  Now,  who  does  not  see  the  positive  direction  of  eco- 
nomic science?  In  it  is  proclaimed  the  necessity  of  regarding 
economic  facts  no  longer  in  an  abstract  way,  but  as  they  actually 
occur,  in  such  and  such  conditions  of  time  and  place,  in  order  to 
deduce  from  them  historical  laws  valuable  for  a  given  country,  at 
a  given  period  of  time  and  not  for  other  countries  and  other 
epochs.  This  is  a  direction  that  leads  by  an  inexorable  logic  to 
positive  and  scientific  socialism  which  is  economic  "transformism." 
Who  does  not  see,  I  say,  that  this  direction  is  perfectly  anal- 
ogous to  that  which  the  positive  school  foreshadows  and  which 
it  has  already  begun  to  apply  in  the  penal  and  criminal  sciences?  * 

^  Laveleye,  "Le  socialisme  contemporain"  (4th  ed.  Paris,  1888);  Lampertico, 
"Economia  dei  popoli  e  degli  stati,"  vol.  I  (Milan,  1879);  Roe,  "Socialismo  con- 
temporaneo,"  Italian  translation  by  Bertolini  (2d  ed.  Florence,  1895),  Chap.  XI. 

The  reproach  which  Durckheim  in  "Les  regies  de  la  methode  sociologique" 
(Paris,  1895,  p.  31)  makes  to  political  economy,  that  it  has  not  positive  realities 
but  "pure  conceptions  of  the  mind,"  as  the  content  and  object  of  its  studies  is 
accurate  in  respect  to  the  classical  school  of  political  economy.  But  scientific 
socialism  —  in  the  same  way  as  this  happened  in  the  case  of  the  positive  and 
classical  criminal  schools  —  has  really  applied  the  rule  of  method  which  Durck- 
heim rightly  extends  to  all  sociology:  that  is  to  say,  we  must  "consider  social  facts 
as  things";  or,  to  put  it  another  way,  we  must  consider  them  in  their  objectivity 
and  in  their  conditions  of  time  and  place. 

*  For  the  inevitable  necessity  for  sociology  to  reach  its  logical  conclusion  in 
socialism  and  on  the  fundamental  agreement  of  socialism  (as  it  was  constituted  by 
Marx  in  the  first  place)  with  the  evolutionary  movement  of  modem  thought  (as 
disciplined  by  Darwin  and  Spencer)  see  my  work,  "Sociologia  e  scienza  positiva" 
(2d  ed.  Palermo,  Sandron,  1899).  See  also  my  communication,  entitled  "Sociol- 
ogie  et  socialisme, "  to  the  First  International  Congress  of  Sociology  at  Paris  (1894), 
in  the  "Annales  de  I'lnstitut  intemationale  de  Sociologie"  (Paris,  1895),  I.  p. 
157,  where  I  concluded  by  giving  the  first  expression  to  a  statement  which  raised 
a  great  uproar  more  or  less  apparent  or  sincere  among  the  neutral  and  undecided 
and  professional  sociologists  but  which  proves  itself  more  every  day,  viz.:  Soci- 
ology will  be  socialistic  or  it  will  not  exist. 


18  INTRODUCTION  [§  10 

And  further,  who,  comparing  the  fact  of  the  new  tendency  of 
criminology  with  analogous  facts  occuring  in  art  and  science, 
does  not  see  that  one  has  a  new  and  singulariy  eloquent  proof  of 
its  historical  opportunity  and  practical  utility?  Again,  all  of 
this  only  confirms  once  more  an  idea  solidly  established  in  the 
history  of  humanity  —  that  no  phenomenon  is  miraculous  or 
arbitrary,  but  that  everything  occurs  as  it  should  occur,  since  a 
fact  is  but  the  natural  effect  of  determining  causes.  Conse- 
quently, if  this  progressive  movement  in  criminal  science  is  ever 
increasingly  seen,  in  our  time,  it  would  be  a  strange  aberration  to 
impute  it  to  the  personal  caprice  of  any  individual  instead  of 
recognizing  in  it  the  necessary  and  unavoidable  manifestation  of 
a  certain  historical  condition  of  science  as  the  reflection  of  social 
life.  I  was,  therefore,  right  in  asserting  that  our  school  is  not  a 
partial  union,  more  or  less  organic  —  a  more  or  less  transitory 
sympathetic  alliance  of  criminal  law  with  the  anthropological  and 
social  sciences  —  but  is  one  of  the  numerous  and  happy  appli- 
cations of  the  positive  method  of  the  study  of  social  facts  and,  in 
this  regard,  is  an  ulterior  development  of  the  classical  school 
founded  by  Beccaria. 

§  10.  Programme  of  the  New  School 

Indeed,  if  the  school  founded  by  Beccaria  sought  and  obtained 
in  practice  a  diminution  of  penalties  and  in  theory  the  abstract 
study  of  crime  considered  as  a  juridical  entity,  the  new  school  in 
turn  seeks  a  double  and  fruitful  aim.  In  practice,  its  proposed 
object  is  the  diminution  of  crimes,  which  always  increase  rather 
than  diminish;  and  in  theory,  in  order  to  secure  this  practical 
object  it  proposes  the  complete  study  of  crime,  not  as  a  juridical 
abstraction,  but  as  a  human  act,  as  a  natural  and  social  fact: 
consequently  it  undertakes  to  study  not  only  crime  in  itself  as  a 
juridical  relation,  but  also,  and  in  the  first  place,  to  study  him  who 
commits  the  crime,  that  is,  the  delinquent.  And  as  medicine 
teaches  us  that  to  discover  the  remedies  for  a  disease  we  must 
first  seek  and  discover  the  causes,  so  criminal  science  in  the  new 

This  declaration  had  been  preceded  by  another  in  my  work  "Sociologaie  cri- 
minality," 1883,  on  the  need  for  empiric  socialism  to  submit  itself  to  the  discipline 
of  sociological  teachings,  and  this  is  clearly  demonstrated  by  the  scientific  direc- 
tion which  Marx  and  Engels  have  given  to  socialism. 

On  this  agreement  between  science  and  life  in  socialist  doctrine,  see  my  in- 
augural discourse  at  I'Umversit^  nouvelle  of  Brussels:  "La  science  et  la  vie  au 
XrX"  siicle." 

V 


§10]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  19 

form  which  it  is  beginning  to  assume,  seeks  the  natural  causes  of 
the  phenomenon  of  social  pathology  which  we  call  crime:  it  thus 
puts  itself  in  the  way  to  discover  effective  remedies  which  may 
not  indeed  eliminate  it  (because  there  are  in  nature  anomahes 
that  may  be  lessened  without  being  capable  of  destruction),  but 
which  may  repress  it  within  certain  bounds.  Nor  is  this  all. 
As  we  have  seen  the  classical  school  rise  in  the  name  of  in- 
dividualism to  vindicate  the  rights  suppressed  by  the  State 
during  the  Middle  Ages,^  so  the  positive  school  now  Umits 
the  sometimes  excessive  predominance  of  individualism  and  re- 
establishes the  equilibrium  between  the  social  and  individual 
elements. 

This  characteristic  of  the  new  school  of  criminal  law  is  common 
to  all  the  other  juridical  and  social  sciences,  especially  pohtical 
economy;  since  political  economy  (although  it  does  not  lack 
the  intellectual  courage  to  reach  the  socialistic  conclusion)  shows 
in  the  most  striking  manner  a  scientific  tendency  to  temper  an  ex- 
aggerated and  metaphysical  individualism  by  the  introduction  of 
the  social  element  in  a  juster  proportion.  This  is  fully  in  accord 
with  the  great  law  of  action  and  reaction  which  dominates  the 
physical  as  well  as  the  moral  world  —  a  law  by  which  a  force, 
over-developed  in  a  given  direction,  ends  by  inciting  an  inverse 
reaction,  which  in  turn  always  reaches  a  point  beyond  the  proper 
limit;  and  it  is  only  after  these  opposite  movements  have  reached 
their  extremes  that  a  mean  and  definite  current  for  each  historical 
movement  is  produced  and  itself  becomes  the  origin  of  an  uninter- 
rupted succession  of  rhythms  of  action  and  reaction.  From  this 
flows  the  immediate  consequence  that,  in  the  order  of  theory,  we 
accept  willingly  and  gratefully  all  that  has  been  accomplished 
thus  far  by  the  classical  schools  in  the  juridical  study  of  crime, 
reserving  to  ourselves,  it  is  needless  to  say,  the  undeniable  right 
of  modifying  ideas  which  the  progress  of  the  natural  sciences  has 
shown  to  be  out  of  harmony  with  the  reality  of  facts.  We  ac- 
knowledge that  without  the  glorious  labors  of  our  predecessors 
we  ourselves  could  have  made  no  progress.  This  is  agreeable  to 
the  universal  law  of  evolution  by  which,  as  Leibnitz  said,  the 

*  Puglia,  "L' Evolution  historique  et  scientifique  du  droit  et  de  la  proc^ure 
penale"  (Messina,  1882);  Worms,  "Les  theories  modemes  de  la  criminality" 
(Paris,  1814);  Prins,  "Causerie  sur  les  doctrines  nouvelles  de  droit  penal  "  (Brus- 
sels, 1896);  Marcuse,  "Strafrecht  und  sociale  Auslese,"  in  the  "  Centralblatt  fur 
Nervenheilkeit  und  Psychiatrie,"  August,  1897;  Caignard  de  Mailly  "L'6volution 
de  rid6e  criminaliste  au  XIX^  siecle"  (Paris,  1898)  (extrait  de  la  Reforme  Sociale). 


20  INTRODUCTION  [§10 

present  is  the  child  of  the  past  but  father  to  the  future.^  Such 
being  the  origin  and  viewpoint  of  the  positive  school  of  criminal 
and  penal  law,  the  attacks  which  the  birth  of  this  scientific  move- 
ment called  forth  from  both  theorists  and  practitioners  can  be 
explained  only  as  habitual  prejudices  —  as  the  repugnance  which 
is  ordinarily  aroused  by  every  innovation  and  which  Lombroso 
called  "Misoneism." 

It  has  been  charged  that,  in  the  matter  of  penal  law,  we  tend 
towards  "complete  nihilism,"  merely  because  we  have  said  that 
the  existing  science  often  does  not  rest  upon  positive  foundations, 
and  hence  as  astronomy  is  derived  from  astrology,  chemistry  from 
alchemy,  psychiatry  from  demonology,  and  so  on  —  we  believe 
that  a  body  of  doctrine  more  positive  and  more  useful  to  society 
will  in  like  manner  spring  from  the  existing  penology,  so  illusory 
in  practice.  Our  accusers  did  not  perceive  the  signification  of 
the  new  school;  that  it  came  to  rejuvenate  and  vivify,  through 
experimental  studies,  the  true  and  imperishable  part  of  criminal 
law,  compensating  by  this  inestimable  benefit,  the  loss  of  leaves 
and  branches  withered  by  metaphysics.  It  is  a  law  in  nature,  that 
everything  progresses  by  degrees,  and  thus  criminal  science,  like 
every  living  organism,  proposes  in  its  progress  not  the  destruction 
of  all  that  has  heretofore  been  done  in  the  strictly  juridical  field  but 
seeks  only  to  amputate  the  dead  limbs  and  to  stimulate  the  ulterior 
evolution  of  those  germs  which  the  criminologists  have  been  un- 
able to  develop,  absorbed  as  they  were  in  their  historic  mission, 
and  too  often  misled  by  a  method  which  was  always  unproductive. 

*  To  be  just  and  to  show  how  the  ideas  of  the  positive  school  already  existed 
not  only  dimly  in  the  general  conscience,  but  clearly  expressed  by  a  few  thinkers 
and  that  they  only  awaited,  in  order  to  develop  and  assert  themselves,  favorable 
conditions  of  the  scientific  and  social  medium  such  as  I  have  indicated  above,  I 
recall  some  observations  of  Gall,  "Sur  les  fonctions  du  cerveau"  (Paris,  1825), 
where  he  displayed  extraordinary  foresight —  "Crimes  cannot  commit  themselves; 
hence  they  cannot  be  considered  as  abstract  beings.  Crimes  are  -produced  by  indi- 
tiduals  who  act;  therefore  they  receive  their  character  from  the  nature  and  the  condi- 
tion of  these  individuals  and  one  can  only  imderstand  them  according  to  the  nature 
and  condition  of  these  same  individuals"  (I,  358).  —  "Crimes  have  been  consid- 
ered in  themselves  as  abstractions  from  their  author.  To  change  the  will  of 
wrong-doers,  it  has  been  thought  sufficient  to  inflict  punishment  on  them"  (I,  339). 
—  "The  object  of  legislation  should  be  as  much  as  the  nature  of  man  permits 
to  prevent  the  crimes,  to  correct  the  WTong-doers,  and  to  place  society  in  safety 
against  those  who  are  incorrigible"  (I,  339). 

For  a  himdred  years  no  advance  of  a  single  step  was  made  beyond  these  fruit- 
ful ideas  entertained  by  Gall  —  of  them  Romagnosi  and  Carlo  Cattaneo  had  an 
intuition  in  the  domain  of  sociology  but  only  in  our  time  has  criminal  sociology 
scientifically  and  practically  put  them  in  a  clear  light ! 
V 


§11]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  21 

§  11.  Eclecticism. 

Since  the  advance  of  science  traverses  periods  of  action  and 
reaction  and  since  every  current  in  a  given  direction  after  it  has 
reached  its  maximum,  induces  an  opposite  current  which  by  reac- 
tion reaches  the  opposite  extreme  until  the  resultant  which  lies 
between  the  two  is  established,  there  is,  so  to  speak,  a  natural 
eclecticism.  But  those  who  are  between  the  classical  school  and 
the  positive  school,  and  who  have  not  taken  sides  with  one  or  the 
other,  and  who  have  proclaimed  an  "alliance"  between  the  an- 
thropological and  penal  sciences,  do  not  belong  to  this  natural 
eclecticism.  As  penal  science  has  actually  witnessed  the  complete 
development  of  the  classical  school  and  the  beginnings  of  the 
positive  school,  eclecticism  can  be  only  "a  priori"  since  it  assumes 
to  determine  the  resultant  of  two  currents  of  which  the  last  is 
far  from  having  reached  its  full  expansion:  it  should  be,  therefore, 
and  in  fact  is,  arbitrary  and  provisional  since  the  resultant  must 
be  displaced  with  each  further  development  of  the  new  scientific 
current.  Moreover,  if  eclecticism  appears  after  the  two  currents 
have  accomplished  their  cycle,  it  is  perfectly  futile  for  studious 
men  to  excite  themselves  in  determining  a  resultant  which  de- 
termines itself  better  and  with  greater  nicety  by  a  purely  natural 
effort.  Hence,  to  pretend  to  fix  this  natural  resultant,  from  now 
on,  by  eclectic  exchanges  is  simply  a  fruitless  and  vain  task,  even 
should  it  not  merit  the  ridicule  of  what  I  have  called  "the  expec- 
tative  method,"  wherein  the  positive  examination  of  crimes  and 
delinquents  is  actively  pursued  but  only  "provisionally"  in 
respect  of  the  dominant  criminal  theories,  that  is  to  say,  those 
theories  which  everyday  facts  show  us  are  not  in  accord  with 
reality.^  Further,  in  science  as  in  life,  reality  goes  beyond  the 
idea  of  which  it  is  the  manifestation :  everybody  knows  that  revo- 
lutionists  bring   about   reforms;     that   reformers   maintain   the 

^  Ferri,  "Uno  spiritista  del  diritto  penale,"  in  the  "Archiva  di  psichica," 
VIII,  1-2,  and  "Studi  sulla  criminality  ed  altri  saggi."  (Bocca,  Torino,  1901.) 
This  judgment  which  I  gave  of  eclecticism  and  in  which  many  persons,  it  will  be 
readily  understood,  found  "a  very  marked  bitterness,"  is  in  perfect  agreement 
with  that  of  Loria  in  an  article  on  the  "middle  ideas"  where  he  says  that  if  their 
history  were  possible  it  "would  be  at  all  events  only  the  history  of  mediocrity,  of 
timidity  and  hybridism;  it  would  be  a  document  of  human  shame  and  humil- 
iation; while  only  the  history  of  the  extreme  ideas  could  be  the  epic  of  divining 
mind,  the  immortal  crown  placed  by  history  on  the  brow  of  humanity  and  finally 
the  apotheosis  of  that  thoughtful  and  perplexed  Ahasuerus  who  for  so  many  cen- 
turies has  unceasingly  marched  across  the  sad  regions  of  thought."  "Rivista  di 
sociologia,"  February,  1895,  p.  107. 


22  INTRODUCTION  [§  12 

"statu  quo";  and  that  conservatives  make  concessions.  Hence 
it  is,  that  in  order  to  obtain  effective  reforms,  it  suffices  in  the  ab- 
stract to  be  a  reformer,  but  one  must  in  reality  be  a  revolutionary. 
To  sum  up  what  I  have  said,  eclecticism  must  be  a  natural  re- 
sultant; and  no  one  should  be  an  eclectic  since  useful  eclecticism 
operates  by  itself  alone.  And,  yet,  there  are  eclectics  because 
"natura  non  facit  saltus";  because  in  science  as  in  life  courageous 
and  consequential  souls  always  must  associate  with  men  of  medi- 
ocrity; and  because  when  the  initiative  has  been  taken  in  any 
new  scientific  direction,  it  is  very  easy  and  very  convenient  for 
intellectual  parasites  to  follow  the  lead  and  assume  the  air  of 
innovators.  I  will  not  say,  as  has  been  said  of  hypocrites,  that 
their  existence  is  an  homage  to  truth.  I  will  say,  however,  that 
it  is  an  effect  and  recognition  of  new  doctrines.  In  fact,  in  the 
present  debate  between  the  two  criminal  schools,  not  only  the 
pure  classicists  make  concessions  (Carrara  alone  having  remained 
irreconcilable,  because  he  was  fully  aware  that  one  stone  removed 
from  the  metaphysical  systems  would  bring  down  the  whole 
edifice)  but  even  the  less  ancient  criminologists  or  neoclassicists, 
as  they  have  been  called,  freely  invoke  a  marriage  of  convenience 
between  the  old  penal  law  and  the  young  positive  science.  They 
always  forget  that  the  new  school  stands  for  a  complete  innova- 
tion in  scientific  method,  and  that  there  is  no  middle  term;  either 
one  syllogizes  on  crime  considered  as  an  abstract  juridical  being 
or  one  studies  it  as  a  natural  phenomenon.  Once  concede  this 
innovation  in  method  and  all  the  rest  comes  irresistably,  imposed 
by  the  observation  of  facts.  This  is  so  true  that  with  our  eclectics 
everything  may  be  reduced  to  making  the  man  who  commits  the 
crime  and  the  natural  factors  of  crime  figure  in  the  preliminary 
chapter,  as  a  somnolent  and  conventional  group  of  "auxiliary 
sciences"  of  penal  law  and  thereafter  to  follow  in  the  ruts  of  the 
old  juridical  syllogisms  without  demanding  of  these  auxiliary 
sciences  the  facts  which  should  serve  as  the  basis  of  general  induc- 
tions. This,  for  an  example  among  the  moderns,  is  the  procedure 
of  Liszt  and  Garraud  in  their  treatises  on  criminal  law.^ 

§  12.  The  Third  School. 

There  has  been  observed  in  Italy  the  birth  of  a  third  school 
which  makes  claims  that  it  is  based  upon  these  three  "funda- 

'  LisTi,  "Lehrbuch  des  deutschen  Strafrechts"  (8th  ed.  Berlin,  1897);    Gar- 
raud, "Traits  de  droit  p^nal  franQais"  (Paris,  1888-94),  5  vols. 


§12]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  23 

mental  points;  (I)  respect  for  the  personality  of  civil  penal  law, 
in  its  scientific  renovation;  (II)  the  causality  and  not  the  fatal- 
ity of  crime  and,  consequently,  the  "exclusion  of  the  anthropo- 
logical criminal  type";  (III)  social  reform  as  the  duty  of  the 
State,  in  the  fight  against  crime.^ 

However,  this  school,  as  I  unhesitatingly  predicted  in  the 
third  edition  of  the  present  work  (1892),  could  not  live  and  prosper 
simply  because  it  is  based  on  no  suflScient  reason.  One  cannot 
believe  that  mere  disagreements  of  personal  views  are  sufficient 
to  make  a  school  or  a  scientific  movement.  If  such  were  the  fact, 
instead  of  one  classical  criminal  school,  we  would  have  at  least  a 
dozen,  as  we  would  find  at  least  that  many  groups  of  criminologists 
with  ideas  differing  on  particular  points.  For  example,  take  the 
fundamental  reason  for  the  right  to  punish:  on  this  point  Berner 
has  distinguished  as  many  as  fifteen  theories  which  he  classifies 
as  "absolute,"  "relative,"  and  "mixed." ^  These  personal  dif- 
ferences occur  even  more  readily  in  the  positive  theory  because 
of  the  greater  diversity  in  the  personal  observation  of  positive 
facts.  Nor  is  it  any  the  less  evident  because  the  classical  school 
and  the  positive  school  each  forms  an  organic  whole  characterized 
by  the  unity  of  its  method  and  its  general  conclusions.  This  is 
so  manifest  that  Tarde  himself,  —  a  so-called  eclectic,  and  a 
disguised  spiritualist,  as  he  showed  more  and  more  by  his  later  un- 
convincing volumes  on  "social  logic"  and  "universal  opposition" 
after  I  gave  a  scientific  diagnosis  of  his  previous  labors,  —  speak- 
ing of  the  two  chiefs  and  the  common  soldiers  of  the  "third  school" 
at  a  time  when  it  was  still  in  process  of  gestation,  paternally  ad- 
vised them  "not  to  retard  themselves  with  useless  polemics  on 
whether  there  really  is  a  third  school  unfolding  itself  on  the  fer- 
tile soil  of  Italy";'  and  I,  for  my  part  added  that  to  make  a 
third  school  it  was  not  enough,  for  example,  "to  attack  the  Michel 
Angelo  statues  sculptured  by  Lombroso  and  to  rescratch  them  in 
a  few  places  with  the  syllogistic  file  by  the  aid  of  a  magnifying 
glass.^    Aside  from  Fletscher's  accurate  remark  that^  the  positive 

1  Carnevale,  "Una  terza  scuola  di  diritto  penale  in  Italia,"  in  the  "Rivista 
carceraria,"  July,  1891;  "La  nuova  tendenza  nelle  discipline  criminali,"  in  the 
"Antologia  giuridica,"  1892,  part  8;  Almena,  "Naturalismo  critico  e  diritto 
penale"  (Rome,  1892),  "La  scuola  critica  di  diritto  penale"  (Naples,  1894). 

*  Berner,  "Trattato  di  diritto  penale,  "Italian  translation  by  Bertola  (Milan, 
1887),  pp.  6-31.    And  it  is  about  the  same  in  all  the  classical  treatises  on  penal  law. 

'  Tarde,  in  the  "Archives  d'  anthropologie  criminelle,"  15  March,  1892. 

*  Ferri,  "  Intelligenza  e  morality  della  folia."  —  Controversy  with  Sighele  in 
the  "Scuola  positiva,"  Sept.   1894,  p.  729. 

*  Fleischer,  "The  New  School  of  Criminal  Anthropology"  (Washington,  1891). 


24  INTRODUCTION  [§  12 

school  stands  between  the  spiritualistic  thesis  (which  centers  the 
whole  origin  of  crime  in  the  mathematical  point  of  free  will)  and 
the  primitive  thesis  of  sentimental  socialism  (which  traces  the 
origin  of  crime  exclusively  to  suffering),  —  whereas  the  socialists 
after  my  work  on  "Socialism  and  Positive  Science"  were  willing 
to  concede  that  even  were  suffering  once  suppressed  there  would 
still  be  sporadic  forms  of  crime  due  to  unavoidable  influences, 
pathological,  traumatic,  etc.,  —  Van  Hamel  said  of  the  pretended 
"middle  school,"  which  rests  on  the  importance  given  to  social 
factors  in  the  genesis  of  crime  (as  if  the  positive  criminal  school 
had  not  placed  these  factors  in  a  strong  light  from  its  beginning 
with  the  first  edition  of  this  work):  "A  separate  school  is  not 
based  on  sufficient  reason,  because  every  movement  will  remain 
sterile  which  does  not  approach  the  point  of  departure  of  the 
Italian  school,  that  is  to  say,  the  etiological  study  of  the  delinquent 
and  the  three  orders  of  individual,  physical,  and  social  factors  in 
crime."  ^  In  thought  and  in  intellectual  labor  there  are  but  two 
great  highways:  either  "a  priori"  deduction,  or  positive  induc- 
tion; it  being  of  course  understood  that  the  deductive  method 
does  not  absolutely  exclude  all  induction  in  the  "a  priori,"  and 
vice  versa,  since  it  is  only  a  question  of  predominance. 

In  addition  to  these  two  great  highways  there  may  be  paths, 
but  not  a  third  highway.  Thus  the  classical  school  has  its  irreg- 
ulars, as  the  positive  school,  too,  has  and  will  have  them.  Hence 
these  three  schismatic  points,  which  should,  it  is  claimed,  justify  a 
third  school,  are  secondary  or  inexact.  In  the  first  place,  preoc- 
cupation with  the  personality  of  the  penal  law  is  purely  a  scholas- 
tic question:  whether  penal  law  be  called  criminology  or  criminal 
sociology,  it  all  turns  about  the  study  of  crime  as  a  natural  and 
social  phenomenon  and  the  method  and  measures  to  be  employed 
in  the  preservation  of  society  from  it.  All  else  is  but  academic 
futility  and  I  will  discuss  it  in  the  conclusion  of  this  work.^  The 
word  "penalty"  a  few  hundred  years  ago  meant  compensation; 
in  the  classical  school  it  means  punishment  and  pain  (and  on  this 
Carnevale  insisted);  in  the  positive  school  it  means  repressive 
and  preventive  defense.  The  second  point  is  an  equivocation: 
none  of  us  speak  of  the  fatalism  of  crime  but  always  of  causal  or 
natural  determinism;   and  this  is  so  obvious  that  Lombroso,  who 

*  Van  Hamel   "Der  tegen  Wordige  Beweging  op  triet  gebied.  van  het  Stra- 
frecht"  (Amsterdam,  1891),  and  in  the  "Scuola  postiva,"  1891,  p.  46  and  144. 
»  Post. 

V 


§  13]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  25 

has  been  oftenest  accused  of  biological  fatalism,  cited  the  case 
of  the  born  delinquent  who,  thanks  to  favorable  surroundings, 
commits  no  crime.  In  fact,  in  the  third  volume  of  the  last  edition 
of  "L'uomo  dehnquente"  he  indicates  the  means  to  prevent  and 
cure  the  social  malady  which  engenders  crime.  Finally,  the  third 
point  is  absolutely  without  justification  if  the  positive  school  was 
the  first  to  systematize  not  only  the  four  classes  of  preventive 
means  against  crime  but  also  the  theory  of  social  prevention 
(equivalents  for  penalties)  by  insisting  on  the  notorious  ineflS- 
ciency  of  punishment  in  the  fight  on  crime  and  in  proclaiming 
that  social  evils,  as  we  shall  see  later,  require  social  remedies. 

§  13.  The  Positive  Criminal  School  Is  in  Its  Third  Period. 

The  positive  criminal  school  is  now  passing  through  the  third 
period,  that  which  in  the  evolution  of  every  new  science  precedes 
definitive  triumph.  All  innovations  necessarily  pass  through  the 
same  phases.  At  first  ignored  because  their  dawn  is  confused 
with  the  last  twilight  rays  of  the  ruling  traditional  theories,  then 
scoffed  at  by  the  profane,  as  is  everything  which  startles  the 
mental  habits  of  the  multitude,  they  seem  to  be  smothered  under 
the  Olympian  silence  of  the  pontiffs  of  orthodox  and  official  sci- 
ence. This  is  the  period  of  their  trial;  since  the  attempted 
innovations  are  either  incapable  of  life  and  succumb  during  this 
phase  of  popular  contempt  and  academic  disdain,  or  are  really 
endowed  with  vitality  and  in  spite  of  the  unintelligent  judgments 
of  the  distracted  mob,  or  the  misrepresentations  of  disloyal  op- 
ponents, succeed  in  forcing  themselves  on  the  attention  of  the 
public  and  become  recognized  by  science,  through  repeated  proofs 
of  positive  studies.  In  their  fight  for  existence  ideas  know  no 
quarter.  Each  day,  with  greater  ardor,  they  are  carried  from  the 
limited  field  of  schools  and  books  to  the  vast  and  tumultuous 
amphitheater  of  daily  life,  into  discussion  and  judicial  and  admin- 
istrative application.  There,  they  must  above  all  conquer  the 
law  of  inertia,  mental  habit,  and  misoneism.  These  again,  and 
more  rigorously,  test  their  scientific  and  practical  vitality.  The 
results  of  this  conflict,  however,  alike  in  science  and  in  life,  are 
compromises,  hybrid  intermixtures,  drifts  of  eclecticism,  grafts 
of  positive  conclusions  on  "a  priori"  premises,  and  which  often 
bring  confusion  and  sometimes  scandal  into  the  sanctuary  of  the 
courts.  But  one  clearly  sees  that  this  is  only  the  prelude  to  the 
last  phase  where  the  new  ideas,  strengthened  by  the  test,  emerge 


26  INTRODUCTION  [§  14 

from  it  victorious,  corrected  and  perfected.  Founded  upon  that 
part  of  positive  truth  which  even  the  traditional  theories  con- 
tained, they  are  grasped  by  popular  thought  and  become  the 
dominant  ideas  for  new  generations.  They  are,  in  turn,  trans- 
formed into  traditions,  mental  habits,  and  social  institutions  and 
prepare  themselves  for  the  inevitable  struggles  against  other 
ideas  which  the  future  will  bring  forth,  the  ever  new  conquests 
of  science  over  the  imknown,  by  which  humanity  advances  along 
the  diiSScult  and  arduous  road  of  civilization. 

§  14.  The  Intematiomil  Congresses  of  Criminal  Anthropology. 

The  history  of  the  successive  international  congresses  of  crim- 
inal anthropology  held  in  late  years  proves  most  eloquently  the 
triumphant  vitaUty  of  the  new  scientific  current.  The  second 
congress  was  held  at  Paris  in  1889,  and  our  French  colleagues 
(Tarde,  Lacassagne,  Manouvrier,  Topinard,  and  others)  took 
advantage  of  it  to  enter  into  the  first  skirmishes  with  the  school 
which  is  known  abroad  as  the  "New  Italian  School":  it  was  de- 
fended by  Lombroso,  Ferri,  Garofalo,  Pugliese,  Olivieri,  Laschi, 
Drill,  Van  Hamel,  Samal,  Detcherew,  Moleschott,  and  Clemence 
Royer.  As  the  most  animated  discussions  dealt  with  the  famous 
"criminal  type,"  ^  the  congress  unanimously  approved  the  pro- 
posal of  Garofalo  and  named  an  international  commission  (Lom- 
broso, Lacassagne,  Benedickt,  Bertillon,  Manouvrier,  Magnan, 
and  Lemal)  instructed  "to  make  a  series  of  comparative  observa- 
tions, the  results  to  be  presented  to  the  next  congress,  on  at  least 
a  hundred  living  criminals  and  a  hundred  honest  men  of  known 
personal  and  hereditary  antecedents.  This  was  really  a  positive 
means  for  the  solution  of  the  difficulty.  But  the  committee  never 
met,  and  one  of  its  members,  Manouvrier,  published  a  memoir  to 
demonstrate  that  such  a  comparison  was  impossible,  as  if  the 
criminal  anthropologists  in  Italy  and  elsewhere  were  not  mak- 
ing it  every  day  by  strictly  scientific  methods,  controlled  and 
confirmed  in  every  part. 

Just  prior  to  the  third  congress,  at  Brussels  in  1892,  the 
Itahan  criminal  anthropologists  and  sociologists  in  a  letter 
signed  by  forty-nine  of  them,^  declined  to  take  part  in  the 
congress  unless  the  data  of  facts  which  the  international  commis- 
sion ought  to  have  presented,  and  on  which  it  would  have  been 
possible  to  attempt  a  positive  and  decisive  discussion,  would  be 

1  See  Chap.  II.  post.  *  See  "Scuola  Positiva,"  May,  1892,  p.  422. 

V 


§  14]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  27 

produced.  And  their  absence  from  this  congress  gave  unbridled 
liberty  to  the  most  scathing  and  eloquent  scoffings  at  the  criminal 
type  and  criminal  anthropology;  and  it  was  in  vain  that  Van 
Hamel,  Drill,  and  Mme.  Tarnowski  tried  to  stem  the  tide.  The 
abuse  continued  in  the  newspapers  and  reviews  of  our  opponents, 
who  for  two  or  three  years  split  our  heads  with  their  triumphant 
refrain  that  "for  the  future  the  anthropologico-criminal  school 
is  dead  and  buried."  But  the  school  gave  evidence  of  its  move- 
ment and  life,  publishing  volumes  full  of  the  results  of  experi- 
mental research,  until  the  fifth  international  Congress  at  Geneva 
in  1896.  It  was  opened  by  the  President  of  the  Swiss  Confeder- 
ation with  an  address  in  which,  among  other  significant  utter- 
ances, he  said  to  the  members:  "The  character  of  your  work 
requires  you  to  be  endowed  with  the  modern  spirit.  If  one,  not 
the  least  illustrious  among  you,  has  advanced  beyond  his  times, 
he  becomes  a  herald  of  the  future;  which  will  be  his  crowning 
glory  in  the  eyes  of  posterity."^  To  end  the  complaints  of  our 
opponents  the  Italians  took  part  in  this  Congress  and  obtained  a 
splendid  triumph  for  the  "anthropologico-criminal  school." 
Among  other  results  obtained,  they  put  an  end  to  a  mistaken 
idea,  which  had  existed  for  a  short  time  even  in  the  native  land 
of  the  school,  and  which  persisted  in  other  countries  for  a  much 
longer  period.^  For  a  belief  had  become  deep-rooted  (and  our 
classical  and  eclectic  adversaries  did  their  best  to  foster  it)  that 
the  fundamental  conclusion  of  the  Italian  school  on  the  criminal 
type  (that  is  to  say  on  what  in  1880  I  called  "delinquente  nato," 
or  born  criminal,  a  name  which  has  been  adopted  in  popular  lan- 
guage, thus,  both  proving  its  accuracy  and  the  infiltration  of  these 
ideas  into  the  public  mind)  was  based  entirely  on  anatomical 
data  secured  from  the  skulls  of  delinquents. 

For  many  years  some  critics  were  really  ignorant,  and  many 
more  pretended  to  be  ignorant,  of  the  fact  that  the  Italian 
school  from  its  beginning  (for  instance,  in  the  first  edition  of 
this  book,  which  was  published  at  Bologna  in  1881)  has  studied 
crime  not  merely  as  a  biological  phenomenon  but  also  as  a 
social  phenomenon,  and  that  the  criminal  was  always  studied 
not   merely  as  an  individual  personality  but  also  as  a  social 

1  Lachenal  in  the  "  Actes  du  IV  *  Congrfe  d' Anthropologic  criminelle"  (Ge- 
neva, 1897),  p.  173. 

*  This  was  largely  due  to  the  fact  that  Lombroso's  "L'uomo  delinquente"  was 
the  only  foreign  publication  of  the  school  until  1895,  which  lent  a  certain  air  of 
probability  to  the  erroneous  belief. 


28  INTRODUCTION  [§  14 

personality.  But,  as  it  is  more  diflBcult  to  pull  a  nail  than  to 
drive  it,  and  as  those  who  will  not  hear  are  as  badly  off  as 
those  who  are  really  deaf,  it  was  as  vain,  after  the  Congress 
of  Brussels  as  after  the  Congress  of  Paris  to  declare  and  re- 
peat that  the  question  of  a  criminal  type  was  improperly  pre- 
sented and  mutilated  if  viewed  from  an  exclusively  anatomical 
standpoint.  There  were  brilliant  debates  at  the  Congress  of 
Geneva  where,  by  these  declarations  of  ours  (already  insistently 
reiterated  by  Lombroso  and  myself),  an  attempt  was  made  to 
clear  the  field  of  the  obstacles  artfully  accumulated  by  our  ad- 
versaries and  at  the  same  time  to  impress  upon  public  attention 
the  conclusions  of  the  positive  criminal  school  in  their  true  light. 
Indeed,  we  have  always  maintained  that  as  every  crime  was  the 
resultant  of  three  orders  of  natural  factors  (anthropological, 
physical,  and  social),  neither  the  family  nor  social  life  of  the  de- 
linquent could  explain  the  genesis  of  crime  (the  same  opinion 
that  was  maintained  in  Italy  as  early  as  1880  by  Turati,  Battaglia, 
and  others),  nor  the  anthropological  conditions  (that  is,  ana- 
tomical, physiological,  and  psychical)  of  the  delinquent.  But  in 
every  crime  there  intervenes  the  complex  and  decisive  determin- 
ism of  the  anthropological  constitution  and  the  geographical  and 
social  medium,  so  that  there  are  to  be  found,  as  I  said  at  the 
Congress  of  Geneva,  born  criminals  who  are  honest  —  in  the  eyes 
of  the  penal  code.  Thus,  tuberculosis  may  not  prove  fatal  and 
hereditary  insanity  may  not  develop  if  the  victim  has  the  good 
fortune  to  live  in  an  environment  and  under  circumstances  which 
are  exceptionally  favorable.  The  opponents  of  the  Italian  school 
who  had  had  the  prudence  to  remain  away  from  the  Congress  of 
Geneva,  consoled  and  comforted  themselves  in  the  newspapers, 
like  Joly  (in  the  "Journal  des  Debats,"  5  Sept.,  1896,  to  which  I 
replied  in  the  number  of  Sept.  20)  or  Tarde  (in  the  "Archives" 
de  Lacassagne)  by  saying  that  the  declarations  of  Lombroso  and 
my  own  at  that  congress  had  belied  our  earlier  conclusions.  But 
the  truth  is  that  only  the  conclusions  that  our  adversaries  cun- 
ningly imputed  to  us  were  belied  and  unmasked.  The  positive 
school  has  followed  its  own  evolution,  since,  in  its  first  phase,  when 
the  biological  researches  of  Lombroso  most  attracted  pubUc  at- 
tention, my  sociological  observations  and  those  of  others  occupied 
a  secondary  place;  while  in  a  later  phase,  the  influence  of  socio- 
logical factors  has  been  less  eclipsed  by  the  brilliancy  of  anthropo- 
logical proofs.  This  has  been  accurately  pointed  out  by  Florian 
V 


§14]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  29 

and  Kurella.^  But  the  truth  is,  that  from  the  beginning  of  the 
positive  criminal  school,  researches  in  biology  and  sociology  have 
always  formed  its  substance  and  its  method.  This  is  so  obvious 
that  even  in  the  first  Congress,  at  Rome  in  1885,  the  programme 
of  discussions  was  distinct  in  the  two  fundamental  sections: 
criminal  biology  and  criminal  sociology;  and  the  same  is  true  of 
the  second  Congress  at  Paris  in  1889,  where  one  of  the  theses  which 
I  presented  bore  directly  "On  the  relative  value  of  the  individual, 
physical,  and  social  conditions  which  determine  crime."  Thus 
the  first  Congress  at  Geneva,  and  then  afterwards  in  a  decisive 
manner  the  fourth  Congress  at  Amsterdam,  in  1901, ^  definitely 
established  the  essential  lines  of  the  new  scientific  movement  on 
crimes  and  delinquents  in  accordance  with  the  inductions  of  the 

^  Florian,"  Jja,  Scuola  criminale  positiva  in  Germania"  (Kurella,  Baer,  Naecke, 
Vargha),  in  the  "Scuola  positiva,"  June,  1896;  Kurella,  "Die  Kriminal.  Anthro- 
pologie  und  ihre  neueste  Entwicklung,"  in  the  "Neue  Deutsche  Rundschau," 
August,  1898;  Gauthier,  "A  propos  du  4*  Congres  d' Anthropologic  Criminelle," 
in  the  "  Schweizerische  Zeitschrift  fiir  Strafrecht,"  1896,  p.  247.  And  for  more 
details,  E.  Ferri,  "II  congresso  d'anthropologia  criminale,"  at  Geneva,  in  the 
"Scuola  positiva,"  September,  1896,  in  the  "Reyue  Scientifique,"  Nov.  7,  1896, 
and  in  the  "  Centralblatt  fiir  Nervenheilkunde  und  Psychologic,"  Nov.,  1896. 

^  Still,  at  the  Congress  of  Amsterdam,  Crocq  and  Gamier  again  raised  the  ques- 
tion of  the  bom  criminal  and  afforded  me  occasion  to  repeat  for  the  thousandth 
time  the  history  of  this  famous  scientific  misunderstanding.  And  the  congress 
in  the  end  remained  convinced  that  for  twenty  years  we  have  believed  that  the 
born  criminal  means  "the  man  predisposed  to  crime,  but  who  will  not  commit 
crime  until  his  physio-psychic  predisposition  becomes  fixed  by  the  conditions  of 
the  mundane  and  social  medium."  But  to  prove  that  the  deaf  are  no  worse  than 
those  who  will  not  hear  and  that  certain  persons  are  incorrigible,  it  suflBces  to  re- 
call a  few  lamentable  episodes.  The  "Rivista  penale,"  as  after  the  Congress  of 
Geneva  (Nov.,  1896),  again  boldly  declared  after  the  Congress  of  Amsterdam 
(Oct.,  1901)  that  Criminal  Anthropology  was  for  the  future  dead  and  buried,  so 
manifestly  in  the  interval  between  the  first  and  second  congresses  it  must  have 
come  to  life.  But  Gauckler  showed  himself  even  more  deaf  ("Revue  penitentiare," 
Sept.-Dec.,  1901)  when  he  said  that  my  declarations  at  Amsterdam,  intended  like 
those  made  at  Geneva,  to  dispel  the  misunderstanding  in  the  minds  of  persons  in 
good  faith,  were  not  in  agreement  with  the  "pure  Lombrosian  school."  I  was 
then  obliged,  for  the  thousand  and  first  time,  to  repeat  in  my  account  of  the  Con- 
gress of  Amsterdam,  the  history  that  I  repeat  here,  as  in  all  my  Italian  editions. 
Nor  is  this  all:  Tarde,  once  again  in  the  same  "Revue  penitentiare"  has  exhibited 
a  curious  but  not  rare  phenomenon;  being  little  advanced  himself  in  studies  of 
criminality,  he  thought  it  was  criminal  anthropology  which  stood  still  and  said  that 
it  "marked  time  on  one  spot."  But  it  suflBces  to  run  through  the  solid  394 
pages  of  the  account  of  the  labors  of  the  Amsterdam  Congress  to  recognize  that, 
aside  from  unavoidable  repetitions,  necessary  for  scientific  propaganda,  there  is 
there  contained  a  mass  of  new  data  confirming  and  developing  the  positive  induc- 
tions. This  explains  how  the  press  of  every  country  in  the  world  spoke  of  this 
congress  as  a  triumph  for  criminal  anthropology,  and  how,  in  homage  to  the 
positive  school,  Turin,  where  Lombroso  is  professor,  was  chosen  as  the  place  of 
meeting  for  the  fifth  international  congress. 


30  INTRODUCTION  [§14 

Italian  school,  as  was  loyally  acknowledged  by  Gautier,  an 
impartial  foreign  observer  of  the  different  schools  and  of  the 
earlier  congresses.  The  new  scientific  development  was  not  only 
asserted  and  broadened  in  the  international  congresses  "ad  hoc'* 
but  it  found  and  continues  to  find  eloquent  champions  in  the  other 
scientific  congresses,  such  as  the  Anthropological  Congress  of  Paris 
in  1878,^  and  those  more  recently  held  at  Antwerp,^  Nancy,' 
Lemberg,*  Toulouse,*  Sienna,^  Cologne,^  Lisbon,*  Weimar,' 
Edinboro,^"  Chicago,^^  Dresden,^^  Rome,^'  Paris,"    Marienbad,^* 

^  "Cr&nes  et  cerveaux  de  criminels,"  discussion  by  Benedikt,  Broca,  Bordier, 
Dally  Tofinard,  in  the  "Comptes  rendus  du  congres  anthropologic  de  Paris," 
1880,  pp.  141  et  seq. 

*  Benedikt,  "  Des  rapports  entre  la  folic  et  la  criminalite,"  address  at  the  Con- 
gress of  Phreniatry  and  Neuropathology  at  Antwerp,  1885;  Heger,  "La  question 
de  la  criminalite  au  congres  d'Anvers"  (Brussels,  1885). 

'  De  Mortillet,  "Anthropologic  criminelle;  la  peine  de  mort  et  les  autres  peines 
au  point  de  vue  sociologique."  Report  to  the  Association  fran^aise  jmur  Vavance- 
ment  des  sciences,  Nancy,  1886. 

*  At  the  Congress  of  Polish  jurists  (1887)  Rosenblatt  discussed  "psychologi- 
cal motives  in  crimes  "  ;  O.  Ersynnski  discussed  "the  new  anthropological  school  "  ; 
and  Butzinski  discussed  "imprisonment  and  deportation  according  to  the  new 
ideas." 

^  De  Mortillet,  "  La  Penalite  au  point  de  vue  anthropologique  et  sociologique." 
"Report  to  F Association  frangaise,  etc."  Toulouse,  1887,  in  the  " Revue  de  philo- 
sophic scientifique,"  Jan.  1888,  p.  63. 

*  "Atti  del  V  Congresso  freniatrico  k  Siena,"  1886  (Milan,  1887),  Discussion 
on  moral  insanity  and  congenital  delinquency. 

'  Binzwanger,  "La  dottrina  della  fisiologia  e  clinica  psichiatrica  in  rapporto 
colic  dottrine  penali  al  congresso  dei  naturalisti  tedeschi  (Cologne,  1888),  in  the 
"Archiva  de  psychiatra,"  IX,  637. 

*  Among  the  subjects  discussed  note  these:  The  necessity  for  reforming  the 
penal  codes  to  put  them  in  harmony  with  psychology,  criminal  anthropologj',  and 
mental  pathology;  Reforms  in  the  different  system  of  penalties  according  to  the 
anthropological  categories  of  delinquents;  Imprisonment  of  delinquents  for  an 
indeterminate  time  (in  the  "Revue  d'anthropologie  criminelle,"  Jan.,  1889,  p. 
49). 

'  At  the  Congress  of  German  medical  alienists,  Sept.,  1891,  the  principal  ques- 
tion was  "Responsibility  and  Criminality";  the  report  was  made  by  Pelman  who 
emphasized  especially  the  works  of  the  positive  criminal  school. 

^^  At  the  1892  session  of  the  "British  Association  for  Advancement  of  Science," 
a  special  section  was  created  for  criminal  anthropology. 

^^  Among  the  many  congresses  which  met  at  Chicago,  in  1893,  the  one  devoted 
to  Moral  and  Social  Reforms  had  a  section  for  the  prevention  and  repression  of 
crime  to  which  Lombroso,  Ferri,  and  Garofalo  were  personally  invited. 

^*  At  the  Congress  of  German  medical  alienists,  Sept.,  1894,  there  was  a  dis- 
cussion on  Criminal  Psychology  between  the  Chairman  Sommer  and  Doctors 
Kurella,  Pelman,  Nauke,  and  Leppmann. 

"  At  the  11th  "International  Medical  Congress"  (Rome,  1894),  a  section  of 
psychiatry,  neuropathology,  and  criminal  anthropology  was  presided  over  by 
Lombroso.  There  were  discussions  on  the  "Stigmata  of  degeneracy"  (Naecke, 
Benedikt,  Lombroso);    on  the  "Brains  of  Criminals"  (Mingazzini,  Scrgi,  Penta» 

V 


§14]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  31 

New  York/  Cassel,^  Tunis,^  Monaco/  Berne/  Moscow/ 
Saratoga/     Paris/     and     Turin/      Without    mentioning    other 

Kurella,  Benedikt,  Roncoroni);  on  the  "Influence  of  sex  in  criminality"  (Ron- 
coroni);  on  the  "Anomalies  in  the  internal  organs  of  degenerates"  (Motta, 
Lombroso,  Tonnini,  Benedikt);  on  "Criminahty  and  the  economic  factor" 
(Fomasari,  Lombroso,  Ferri);  on  the  "Characteristics  of  delinquent  mur- 
derers" (Ferri,  Lombroso,  Naecke,  Kurella,  Benedikt,  Zuccarelli,  Taverni);  on 
the  "Visual  Field  of  Degenerates"  (Ottolenghi) ;  and  on  the  "Clinical  Diag- 
nosis of  a  bom-criminal"  (Lombroso).  See  "Atti  del  XI  Cong.  Med.  intern.," 
Rome,  1895.  vol.  IV. 

1*  At  the  1st  Congress  of  the  International  Institute  of  Sociology  (1894), 
there  was  a  paper  on  "Justice  and  Darwinism,"  by  Novicoio  and  one  on  "Sociol- 
ogy and  Penal  Law,"  by  Dorado  Montero;  at  the  2d  Congress  there  was  a  dis- 
cussion on  "  Crime  as  a  Social  Phenomenon"  (Tcennies,  Ferri,  Garofalo,  Tavares, 
de  Madeiros,  Puglia);  and  at  the  5th  Congress  (1897),  Dorado  Montero,  and  Pu- 
glia  spoke  on  "Penal  Justice  of  the  Future."  See  "Annales  de  I'lnstitut  inter- 
national de  Sociologie,"  Paris,  L  1895;  II,  1896;  IV,  1898. 

"  In  the  session  of  1895  of  the  German  medical  alienists,  Pelman  developed 
the  subject  "  Science  and  Crime"  according  to  the  ideas  of  the  positive  school. 

1  In  the  Medico-Legal  Congress  of  1895  there  was  a  section  of  "Criminal 
Sociology,"  and  there  were  discussions  on  "Homicide-suicide"  (Boehm,  Bach), 
on  the  "Etiology  of  Criminality"  (Brower,  Havelock  Ellis);  on  "Sexual 
Perversion  and  Criminality"  (Lee  Howard);  arid  on  "Indeterminate  sentences 
for  bom  criminals"  (Gordon,  Battle).  At  the  meeting  at  Chicago  (1896)  there 
were  discussions  on  the  "Reform  of  Penal  Justice"  (Austin,  chairman);  on  the 
"Habitual  delinquent"  (MacCaughry);  and  on  the  "Treatment  of  habitual 
delinquents"  (Pinkerton,  Elliott). 

^  At  the  Anthropological  Congress  of  Cassel  (Aug.  1895)  Buschau  read  a 
report  on  the  "  Gegenwartige  Standpunkt  der  Kriminal  Anthropologic." 

^  At  the  Congress  of  the  Association  frangaise  pour  le  progres  des  sciences  in 
April,  1896,  the  "Influence  of  contact  of  two  races  and  different  civilizations  on 
criminality"  was  discussed. 

*  At  the  3d  International  Congress  of  Psychology  (1896)  there  was  a  dis- 
cussion on  the  "Relations  of  Psychology  and  Criminal  Law." 

'  The  meeting  of  Swiss  jurists  (1896)  had  the  Penal  law  for  its  theme:  "In 
what  way  should  the  Swiss  Penal  Code  treat  habitual  criminals?" 

'  At  the  Twelfth  International  Congress  of  Medicine,  Aug.,  1898,  there  was 
a  discussion  on  the  "Existence  of  Criminality  in  the  Sense  Understood  by  the 
School  of  Lombroso,"  and  that  savant  held  an  appreciated  conference  on  the  new 
conquests  of  psychiatry  and  criminal  sociology.   • 

^  At  the  meeting  of  American  Society  of  Social  Sciences,  Sept.,  1897,  Dr. 
Wey,  of  the  Elmira  Reformatory,  spoke  on  the  "Crimes  of  Minors,"  and  Round 
treated  the  suggestive  subject:   "When  shall  we  be  able  to  Abolish  Prisons?" 

*  At  the  meeting  of  the  Association  pour  I'avancement  des  sciences  (Paris, 
Sept.,  1898)  there  was  a  discussion  on  the  causes  of  the  "Continual  Increase  of 
Crime  and  Suicide,"  on  the  "Relation  between  Alcoholism  and  Criminality," 
and  on  "Means  Suggested  for  the  Betterment  of  Convict  Minors." 

"  At  the  1st  Italian  Congress  of  Legal  Medicine  held  at  Turin  (Oct.,  1898)  by 
the  Italian  Association  of  Legal  Medicine  (part  of  its  programme  being  "to  promote 
congresses  which,  in  studying  the  multiple  factors  of  crime,  shall  have  especially 
in  view  the  moral  improvement  of  the  social  classes"),  there  was  also  a  sect  on 
of  "Criminal  Anthropology  and  Criminal  Sociology,"  where  there  were  discussions 
on     "Murders     committed     through     affection"    (Tamburini);    on    "brigands. 


8«  INTRODUCTION  [§  14 

researches  in  criminal  anthropology  made  by  the  anthropological 
societies  already  in  existence,  such  as  the  anthropological  inquiry 
in  the  Belgium  prisons  *  and  the  studies  of  skulls  and  brains  of 
criminals  by  the  societies  of  Lyons,  Paris,  etc.,  —  there  were  also 
founded  at  Buenos  Aires,^  Petrograd,'  Rio  de  Janeiro  (1892), 
and  St.  Paul  (1893)  special  anthropological  criminal  societies. 
In  South  Australia  a  society  was  started,  evidently  in  accord  with 
our  theories  of  criminology  (1897),  which  seeks  to  effect  the 
abohtion  of  capital  punishment,  inaugurate  the  practice  of  inde- 
terminate sentences,  and  institutions  similar  to  the  Elmira  Refor- 
matory,^ —  an  institution  which  it  is  to  be  hoped  will  finally  be 
reproduced  in  Italy.  Let  us  note  also,  among  the  museums  due 
to  private  initiative,  those  established  respectively  by  Lombroso 
at  Turin,  by  Tenchini  at  Parma,  by  Ottolenghi  at  Siena,  by 
Frigerio  at  Alexandria,^  by  Zuccarelli  at  Naples  (with  the  school 
of  criminal  anthropology),  by  Mace  ^  at  Paris,  by  Lacassagne  at 
Lyons,  and  that  "central  museum  of  criminal  anthropology" 
which  the  first  congress  of  criminal  anthropology  at  Rome  (1885) 
proposed,  and  which  Beltrani  Scalia,  director  general  of  prisons, 
organized  a  number  of  years  ago.  In  fact,  anatomists  were  com- 
missioned to  perform  autopsies  on  the  bodies  of  prisoners  to 
gather  craniological  and  anatomico-pathological  data  and  thus 
prepare  magnificent  scientific  material.  Unfortunately,  as  usually 
happens  in  Italy,  this  excellent  initiative  brought  no  results  in 

(Penta);  on  "the  criminal  life  at  Rome"  (Niceford);  on  "tattooing  among 
minors  undergoing  correction"  (Ottolenghi  and  de  Blasio);  on  "latent  delin- 
quency" (Pinsero);  on  the  "transformation  of  the  prison  into  an  agricultural 
colony"  (Eula),  etc. 

^  "  Bulletin  de  la  Societe  d'Anthropologie  de  Bruxelles,"  discussion  of  a  proj- 
ect for  anthropological  investigations  on  delinquents  by  Warnoys,  Prins,  Albrechi, 
Spehl,  Heger,  HouzS,  etc.,  1885,  II,  202;  III,  3,  p.  49;  Ramlot  and  Warnots,  "Sur 
quelques  resultats  de  Tenqufete  de  la  prison  cellulaire  de  Louvain,"  ibid..  Ill,  276 
and  321. 

*  Through  the  initiative  of  Drago,  there  was  instituted,  in  1888,  a  "Societad 
de  antropologia  jurfdica  de  Buenos  Aires"  to  "study  the  person  of  the  delinquent, 
indicate  the  dangers  arising  from  him  and  the  degree  of  his  responsibility,  in 
promoting,  at  the  same  time,  the  gradual  and  progressive  reform  of  the  penal  law 
according  to  the  principles  of  the  new  school."  ("Archives  de  psychologic,"  1888, 
IX,  335.) 

'  A  Russian  Society  of  Anthropology  was  founded  in  February,  1888,  which 
has  placed  criminal  man  among  its  subjects  of  study.  "  Bulletin  de  la  Society  des 
prisons"  (Paris,  1888). 

«  In  the  "Rivista  carceraria,"  Oct.,  1887,  p.  622. 

"  See  "Scuola  positiva,"  Feb.,  1893,  p.  188. 

6  Mac^,  Mon  musee  criminel "  (Paris,  1890). 


§16]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  33 

official  spheres/  although  abroad,  the  rich  collections  of  criminal 
photographs  not  only  aided  the  police  but  served  scientific  re- 
search, as  in  Germany  for  instance,  and  even  in  Russia.  Later, 
museums  of  criminal  anthropology  were  begun:  thus  at  Brussels 
under  the  ministry  of  Begerenz;  at  Gratz  by  the  penal  tribunal;  ^ 
at  Puebla  by  the  State  government;  and  finally  at  Lausanne  by 
Professor  Alfred  Niceforo,  who  was  brought  there  from  Italy. 

§  16.  The  International  Union  of  Criminal  Law. 
The  positive  criminal  school  with  its  tendency  to  seek  prac- 
tical applications,  has  also  recently  declared  itself  in  another 
fashion  by  the  International  Union  of  Criminal  Law,  founded 
in  1889  by  Liszt,  Prins,  and  Van  Hamel,  which  has  now  many 
hundreds  of  adherents.  Unfortunately,  notwithstanding  the 
radically  logical  tendencies  of  Van  Hamel,  the  organization  lies 
befogged  in  eclecticism,  exemphfied  particularly  by  Liszt  and 
Prins,  with  the  result  that  in  the  annual  congresses  the  discussions 
and  proposals  have  become  less  and  less  heterodox  and  radical: 
thus  once  more  bearing  witness  of  the  hopeless  sterility  of  "mid- 
dle" ideas.  In  any  event,  as  Frassati  has  said,  "the  origin  of 
the  International  Union  of  Criminal  Law  ^  is  incontestably  due 
to  the  new  school"  so  also,  according  to  the  statements  of  Liszt 
and  Garraud,  "the  Italian  school  must  be  given  the  credit,  denied 
it  by  some  prejudiced  minds,  of  having  given  a  new  aspect  to 
criminal  and  penal  law."  * 

§  16.  Practical  Applications  of  the  Positive  School. 

The  new  ideas  have  not  been  confined  to  purely  scientific 
spheres:  they  have  already  begun  to  find  more  or  less  direct 
judicial  recognition  and  are  dominant  in  expert  medico-legal 
science.  Among  the  applications  made  by  judicial  criminal  an- 
thropology, one  calls  to  mind  the  Bertillon  method,  which,  adding 

*  The  Congress  of  Legal  Medicine  at  Turin  (Oct.,  1898)  approved  the  pro- 
posal of  Eula  on  the  "Central  Museum  of  Criminal  Anthropology." 

*  Gross,  "Das  Kriminal  Museum  in  Graz,"  in  the  "Zeitschrift  fiir  die  ge- 
sammte  Strafrechtswissenschaft,  XVI,  1894,  and  in  the  "Scuola  positiva,"  March, 
1896,  p.  191. 

'  Frassati,  "La  nuova  scuola  penale  in  Italia  ed  all'estero"  (Turin,  1891),  p. 
477;  Stoos,  Liszt,  LUienthal,  "Die  intemationale  Kriminalistische  Vereinigung 
und  ihre  Zielpumkte,"  in  the  "Zeitschrift  fiir  die  gesammte  Strafrechtswissen- 
schaft" 1894,  pp.  611  and  686. 

*  Liszt,  "Lehrbuch  des  Deutschen  Strafrechts,"  VIII  ed.,  Berlin,  1897,  pp. 
60;  Garraud  in  the  "Revue  penitentiaire,"  July,  1897,  p.  1169. 


S4  INTRODUCTION  [§  16 

anthropometric  data  to  the  photographs  of  suspects  and  ex- 
convicts,  permits  a  more  easy  personal  identification  of  criminals. 
The  Bertillon  system  was  the  first  nucleus  of  the  scientific  police, 
brought  to  a  high  integral  development  by  Ottolenghi,  with  tests 
and  proofs  strictly  in  accord  with  the  premises  of  the  positive 
school.  Then  came  all  the  studies  (Warner,  Galton,  Boas, 
Zuccarelli,  Riccardi,  Niceforo,  Laschi,  Miliarewsky,  Marina)  and 
the  institutions  (Medico-Pedagogical  Institute  of  Petrograd 
directed  by  Miliarewsky,  Elmira  Reformatory,  etc.)  destined  to 
establish  scientific  and  practical  relations  of  anthropology  and 
psycho-pathology  with  pedagogy.  Finally,  in  late  years,  the  legis- 
lative activity  in  all  that  pertains  to  the  habitual- criminal,  to  the 
labor  of  convicts,  to  penitentiary  systems,  to  public  and  private 
insane  asylums,  and  to  conditional  liberation,  conforms  more  and 
more  to  the  rules,  methods,  and  results  of  criminal  anthropology 
and  criminal  sociology.  Even  the  establishment  of  asylums  for 
the  criminal  insane  ("manicomes"),  suspension  of  sentence  for 
the  occasional  minor  delinquents,  reparation  to  the  parties  injured 
for  the  loss  sustained,  and  the  indeterminate  sentences  for  crimi- 
nals in  whose  case  indemnity  is  insuflBcient,  because  of  the  serious- 
ness of  the  act,  and  especially  because  of  the  personal  conditions 
surrounding  the  wrongdoer^  —  all  of  this  is  a  direct  and  spe- 
cific application  of  the  rules  of  the  positive  school.  It  should 
be  remembered  that  the  prison  reforms  accomplished  in  England 
—  beginning  with  the  appointment  of  Griffiths  as  inspector- 
general  of  prisons,  who  at  the  Geneva  Congress  (Aug.,  1896)  of 
criminal  anthropology  expressed  his  belief  in  the  principal  con- 
clusions of  the  positive  criminal  school,  and  especially  in  its 
opposition  to  the  ceU-system,^  have  been  inspired  entirely  by 

^  Urbye,  "Les  sentences  indetermin6es  dans  le  projet  de  C.  P.  Norvegien," 
in  the  "Revue  penale  Suisse,"  1898,  p.  71;  Florian,  "La  scuola  positiva  nel  prog, 
di  C.  P.  Norvegese,"  in  the  "Scuola  positiva,"  1898,  p.  157;  Otlet,  "Les  sentences 
indeterminees  et  la  legislation  beige"  (Brussels,  1898),  p.  9;  Franchi,  "Di  un  sis- 
tema  relativo  di  p>ene  a  tempo  indeterminato,"  in  the  "Scuola  positiva,"  1900,  p. 
449. 

*  Morrison,  "La  scuola  positiva  nelle  reforme  penali  inglesi,"  in  the  "Scuola 
positiva,"  1874,  p.  1072;  Jessie  W.  Mario,  "La  crisi  carceraria  in  Inghilterra" 
{ibidem,  1897),  p.  316;  Griffiths,  "Le  traitement  pratique  de  la  recidive,"  in  the 
"Actes  du  Congres  international  d'  anthropologie  criminelle"  (Geneva,  1897),  pp. 
340  and  364.  In  Italy,  prison  reform  is  delayed;  but  one  can  foresee  what  it  will 
be  according  to  the  draft  of  the  law  by  Minister  Giolitti  for  open  air  labor  of  con- 
victs (5  Dec.,  1902),  which  was  one  of  the  first  affirmations  of  the  positive  school. 
See  Ferri  "Studii  sulla  criminalita  ed  altri  saggi,"  pp.  163  et  seq.;  the  lecture  "La- 
voro  e  celle  dei  condannati,"  at  Rome,  24  Nov.,  1885.    See  in  the  "Scuola  positiva" 


§  16]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  35 

positivist  ideas,  which  readily  find  lodgment  in  the  Anglo-Saxon 
mind,  as  we  shall  also  see  in  considering  the  theory  of  responsibil- 
ity,'^ and  which  are  therefore  in  that  particular  naturally  in  accord 
with  the  researches  of  criminal  anthropology  and  criminal 
sociology. 

The  signification  of  all  this  is  that  in  publications,  as  in 
congresses;  in  scientific  societies  as  in  private  associations;  in 
judicial  practice  as  in  legislative  discussions;  in  administrative 
regulations  as  in  statutory  reforms;  the  new  criminal  school  is 
ceaselessly  spreading  more  and  more,  by  forcing  itself  on  public 
attention  and  by  acquiring  new  champions.  Indeed,  to  such  an 
extent  is  this  true,  that  it  already  has  a  history  concerning  which 
entire  volumes  of  documents  and  bibliographical  notes  have  been 
published.^  With  all  the  exuberance  of  its  scientific  and  practical 
vitality,  it  has  brought,  and  still  brings,  highly  oxygenated  air 
and  lifegiving  light  into  the  schools  and  institutions  that  have 
hitherto  remained  separated  from  the  actual  world  and  secluded 
in  the  now  sterile  circles  of  syllogistic  abstractions  and  metaphysi- 
cal doctrinairism  which  (as  Pasquale  Stanislas  Mancini  himself 
admitted  in  his  last  address  on  the  Penal  Code)  "had  formerly 
supposed  the  delinquent  to  be  enclosed  in  a  glass  case  and  that 
the  physical  and  external  influences  about  him  scarcely  concerned 
him  at  all."  Thus  the  great  Classicist  himself  recognized  "the 
services  which  this  criminal  school  has  rendered  and  is  able  to 
render."  ' 

This  new  energetic  scientific  force  may  therefore  wait  patiently 
and  fearlessly,  until  the  common  conscience,  illuminated  in  its 
turn  by  the  irresistible  study  of  facts,  turns  by  a  natural  evolution 
towards  the  new  doctrines,  giving  them,  as  once  it  gave  the  class- 
ical doctrines  (which  a  century  ago  constituted  a  great  scientific 
revolution),  the  sanction  of  its  assent  expressed  in  positive  laws 
dealing  with  the  morbid  phenomena  of  crime  and  thus  adequately 

(Jan.,  Feb.,  1903);  Franchi,  "II  progetto  Giolitti  per  U  lavoro  dei  condannati 
air  aperto,  e  il  Diritto  penale." 

*  See  'post. 

2  Wulffert,  "The  anthropologico-positive  school  of  penal  law  in  Italy"  (in  Rus- 
sian), vol.  I,  1887;  vol.  II,  1893;  Dorado  Montero,  " L' Anthropologia  Criminal 
en  Italia"  (Madrid,  1890),  1  vol.,  of  177  pages;  Frassati,  "La  nuova  scuola  di  di- 
ritto penale  in  Italia  ed  all'  estero"  (Turin,  1891),  1  vol.,  of  477  pages;  De  Quiros, 
"Lasnuevas  teoriasde  la  criminalidad"  (Madrid,  1898),  1  vol.  of  357  pages  (trans- 
lated into  English  and  published  as  the  first  volume  of  this  Series). 

'  Mancini,  in  the  "Atti  parlamentari,"  7  June,  1888,  p.  3338,  and  in  my  book 
"Difese  penali"  (Turin,  1889),  p.  356. 


36  INTRODUCTION  [§  17 

administering  that  self-styled  "penal  justice,'*  which  until  now, 
either  through  barbarous  popular  prejudice  or  class  interest,  has 
been  enveloped  in  the  sanguinary  mists  of  the  spirit  of  hatred 
and  vengeance. 

§  17.  Criminal  Sociology, —  the  Programme. 
Hence,  to  recapitulate,  the  positive  criminal  school  does  not 
consist,  as  it  seems  convenient  for  many  of  its  critics  to  feign  to 
beUeve,  only  in  the  anthropological  study  of  the  criminal;  it  con- 
stitutes a  complete  renovation,  —  a  radical  change  of  scientific 
method  in  the  study  of  criminal  social  pathology  and  in  the  study 
of  what  is  most  effectual  among  the  social  and  juridical  remedies 
that  social  pathology  presents.  The  science  of  crimes  and  pim- 
ishments  was  formerly  a  doctrinal  exposition  of  the  syllogisms 
brought  forth  by  the  sole  force  of  logical  phantasy.  Our  school 
has  made  of  it  a  science  of  positive  observation,  which,  based  on 
anthropology,  psychology,  and  criminal  statistics  as  well  as  on 
criminal  law  and  studies  relative  to  imprisonment,  becomes  the 
synthetic  science  to  which  I  myself  gave  the  name  "Criminal 
Sociology."  Who  would  have  said  that  the  observations  of  La- 
place on  the  nebular  theory,  the  voyages  of  exploration  in  savage 
lands,  the  first  studies  of  Camper,  White,  and  Blumenbach  of 
measurements  of  the  human  skull  and  skeleton,  the  researches  of 
Darwin  on  the  variations  obtained  in  breeding  cattle,  or  the  ob- 
servations of  Haeckel  in  embryology  —  might  some  day  be  of  in- 
terest to  criminal  law?  With  the  present  division  of  scientific  labor, 
it  becomes  difficult  to  foresee  the  possible  connection  between 
branches  of  science  so  diverse  and  so  far  removed  from  one  another. 
And  yet  it  was  these  astronomical  observations,  these  recitals 
of  travel  which  show  in  the  savages  of  to-day  the  infancy  of 
primitive  humanity  and  also  these  zoological  and  anthropological 
investigations,  that  gave  birth  to  the  first  idea,  yielding  repeated 
proofs  of  the  universal  law  of  evolution  which  has  dominated  and 
renewed  the  whole  scientific  world,  not  excepting  the  moral  and 
social  sciences,  among  which  definitely  figures  criminal  law.  And 
it  is  with  these  discoveries,  intimately  concerning  man,  that  the 
criminologist  of  to-day  must  occupy  himself,  in  order  to  seek  from 
the  experimental  sciences,  a  positive  base  for  his  juridical  and 
social  conceptions,  unless  he  consents  to  resign  himself  to  that 
mere  exercise  of  rhetoric  to  which  daily  practice  in  the  criminal 
courts  gives  the  lie. 


§  17]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  37 

The  juridical  valuation  of  criminal  acts  strictly  concerns  the 
criminologist.  There  are  two  main  reasons  why  he  can  no 
longer  put  off  considering  it.  The  first  is  to  prevent  laymen 
drawing  extravagant  and  erroneous  conclusions  from  the  facts 
which  belie  the  old  theories;  the  second,  that  while  the  other 
juridical  sciences  are  concerned  with  social  relations  (abstract- 
ing individual  particularities  which  do  not  directly  change  their 
value)  —  the  doctrine  of  crimes  and  punishment,  unlike  them, 
has  man,  as  he  really  lives  and  acts  in  the  social  medium,  as 
its  immediate  object.  It  is  clear  that  the  classical  criminolo- 
gists would  oppose  this  new  scientific  movement,  were  it  only 
through  the  force  of  inertia.  Accustomed  as  they  are  to  build 
abstract  theories  with  the  aid  of  pure  logic  and  without  other 
tools  than  paper,  pen,  ink,  and  the  volumes  of  their  predecessors, 
it  is  natural  that  they  should  regret  finding  themselves  forced, 
if  not  to  make  personal  researches,  at  least  to  procure  some  posi- 
tive knowledge  of  anthropology,  psychology,  and  statistics.  But 
the  historical  reasons  for  modern  scientific  thought,  as  we  have 
indicated  them  above,  render  an  increasing  complexity  in  the 
science  of  crimes  and  punishments  inevitable,  arising  from  the 
law  that  things  must  develop  in  becoming  more  and  more  complex 
which  is  so  in  the  physical  as  well  as  in  the  intellectual  and  moral 
order.  Now  in  recapitulating  the  most  serious  and  most  flagrant 
divergences  between  the  new  results  of  the  positive  sciences 
(which  study  man  as  a  physio-psychic  organism,  bom  and  living 
in  the  midst  of  a  fixed  physical  and  social  medium)  and  the  meta- 
physical doctrines  on  crime  punishment  and  penal  justice  of  the 
past,  I  think  I  can  reduce  them  to  the  following  points. 

Among  the  fundamental  bases  of  criminal  and  penal  law  as 
heretofore  understood  are  these  three  postulates: 

1.  The  criminal  has  the  same  ideas,  the  same  sentiments  as 
any  other  man. 

2.  The  principal  effect  of  punishment  is  to  arrest  the  excess 
and  the  increase  of  crime. 

3.  Man  is  endowed  with  free  will  or  moral  liberty;  and  for 
that  reason,  is  morally  guilty  and  legally  responsible  for  his  crimes. 

On  the  other  hand,  one  has  only  to  go  out  of  the  scholastic 
circle  of  juridical  studies  and  "a  priori"  afl^rmations,  to  find  in 
opposition  to  the  preceding  assertions,  these  conclusions  of  the 
experimental  sciences: 

1.   Anthropology  shows  by  facts  that  the  delinquent  is  not  a 


38  INTRODUCTION  [§  17 

normal  man;  that  on  the  contrary  he  represents  a  special  class, 
a  variation  of  the  human  race  through  organic  and  psychical 
abnormalities,  either  hereditary  or  acquired. 

2.  Statistics  prove  that  the  appearance,  increase,  decrease, 
or  disappearance  of  crime  depends  upon  other  reasons  than  the 
punishments  prescribed  by  the  codes  and  appUed  by  the  courts. 

3.  Positive  psychology  has  demonstrated  that  the  pretended 
free  will  is  a  purely  subjective  illusion. 

At  first  glance  it  would  seem  that  the  new  conclusions  founded 
on  facts  could  be  nothing  less  than  the  funeral  oration  of  penal 
law.  Indeed,  this  might  have  been  dreaded,  did  we  not  believe 
that  every  social  phenomenon  and  every  institution,  far  from  being 
the  result  of  human  caprice  or  arbitrary  establishment  is,  on  the 
contrary,  a  necessary  consequence  of  conditions  natural  to  the 
existence  of  humanity  and  that  for  this  reason  as  long  as  these 
conditions  be  not  essentially  changed  —  which  until  now  has  not 
happened  —  the  foundation  itself  of  these  institutions  must  sub- 
sist whatever  change  may  take  place  in  the  manner  of  sustaining, 
studying,  and  regulating  them  in  conformity  with  new  conditions, 
founded  on  facts.^  The  very  purpose  of  this  work  is  to  prove  that 
penal  law,  whether  as  a  function  exercised  by  society  in  self- 
defense,  or  as  a  collection  of  scientific  principles  intended  to  regu- 

1  I  have  treated  in  "Socialismo  e  criminalita"  (Turin,  1883;  out  of  print)  a 
quite  different  question  from  whether  in  a  social  order  entirely  different  from  the 
actual  social  order  and  such  as  socialism  foresees  it,  crime  must  entirely  disappear 
and  with  it  every  function  not  only  penal  in  character  but  for  social  preservation. 

In  that  book,  I  recognized  the  "substantial  truth  of  socialism,"  but  I  com- 
bated the  declarations  and  romantic  visions  of  sentimental  socialism  then  domi- 
nant in  Italy.  Later,  when  there  developed  also  in  Italy  a  current  of  scientific  and 
positive  socialism  (Marx),  I  recognized  its  fimdamental  accord  with  the  theories 
of  biological  evolution  (Spencer),  and  this  I  demonstrated  in  the  book  "Socia- 
lismo e  scienza  positiva"  (Rome,  1894,  2d  ed.  in  press,  and  Paris,  Giard  et  Briere, 
1896),  and  did  but  confirm  and  explain  my  former  conviction  of  the  "substantial 
truth  of  socialism."  I  there  also  confirmed  my  opinion  that  under  a  socialist 
regime,  crime  in  its  most  numerous  and  epidemic  forms  would  disappear  —  in 
the  forms  determined  by  natural  and  moral  suffering;  but  it  would  not  completely 
disappear  and  would  subsist  in  the  sporadic  forms  of  extreme  cases.  The  parti- 
sans of  scientific  socialism  rallied  to  this  opinion,  abandoning  the  former  mono- 
syllabic and  sentimental  claims  of  a  complete  disappearance  of  every  criminal 
manifestation. 

The  positive  criminal  school  in  demonstrating  the  pathological  nature  of 
crime,  and  consequently  in  transforming  penal  justice  from  an  empirical  punish- 
ment for  moral  defects  that  are  impossible  of  definition  and  from  an  instrument 
of  class  domination  into  a  function  of  social  preservation,  as  for  the  contagiously 
diseased,  the  insane,  etc.,  and  hence  fully  and  obviously  in  accord  with  scientific 
socialism  —  really  gives  to  socialism  a  very  solid  foundation  aside  from  eoonomic 
doctrines. 


§  17]     THE  POSITIVE  SCHOOL  OF  CRIMINAL  LAW  39 

late  this  function,  always  has  its  reasons  for  existence.  But  it 
will  at  the  same  time  point  out  the  thorough  renovation  which  is 
being  produced  in  the  spirit  and  in  the  practical  applications  of 
penal  law.  And  this  renovation  finds  its  synthetic  expression 
in  the  following  declaration:  We  should  henceforth  devote  our- 
selves not  to  doctrinal  criminal  law  but  to  positive  criminal  sociol- 
ogy in  the  sense  and  with  the  results  that  I  shall  develop  in  the 
following  chapters. 

That  is  the  reason  why  this  work  on  criminal  sociology,  from  the  first  edition 
(1881)  to  the  third  (anterior  to  my  open  adhesion  to  socialism),  is  able  to  remain 
intact,  in  its  general  lines,  down  to  this  edition,  reconciling  perfectly  its  inductions 
with  the  data  and  conclusions  of  scientific  socialism. 


PART  I 
DATA  OF  CRIMINAL  ANTHROPOLOGY 

CHAPTER   I 

NATURAL   HISTORY    OF   CRIMINAL    MAN 

The  genesis  of  the  anthropological  criminal  school.      Methods.      Value  of  data. 
Observation  of  Criminals. 

§  18.  The  Genesis  of  the  Anthropological  Criminal  School. 

It  was  such  data  ^  which  first  of  all  inaugurated  the  present 
renewal  of  criminal  science  and  which  gave  a  name  to  the  new 
school  currently  designated  by  many  people  as  the  Anthropo- 
logico-criminal  School.  This  name  may  now  be  insufficient  because 
in  the  few  years  of  its  existence  the  positive  school  has  also  already 
utilized  and  made  the  data  of  psychology,  statistics,  and  sociol- 
ogy part  of  its  own  substance;  still,  the  first  impulse  to  the  new 
school  was  due  to  anthropological  studies.  And  this  impulse 
came  after  a  useful  preparatory  phase  in  which  Lombroso,  having 
united  scattered  and  fragmentary  observations  on  criminals  in 
one  organic  whole,  enriched  it  by  his  personal  and  original  re- 
searches and,  breathing  life  into  it,  really  founded  the  new  science 
of  criminal  anthropology.  And  naturally  (since  as  Pascal  says 
man  is  the  most  wonderful  object  of  study  for  man)  even  in  the 
most  ancient  observers  fragmentary  traces  of  anthropology  in 
general  and  of  criminal  anthropology  in  particular,  are  encoim- 
tered;  especially  are  there  traces  of  the  latter,  because  if  man  has 
an  interest  in  knowing  his  fellow-men,  it  is  useful  to  him  for  even 
stronger  reasons  to  know  the  most  dangerous  and,  in  certain 
respects,  the  most  interesting,  that  is,  criminals. 

And  by  the  same  reasoning,  if  popular  experience  has  at- 
tempted (at  all  times)  to  formulate  in  numerous  proverbs  some 
of  the  most  evident  data  of  this  instructive  art  of  judging  men 

^  Data  ("donnees")  evidently  signifies  here  not  conceded  propositions  upon 
which  a  reasoning  is  built,  but  the  results  furnished  ("donnees")  by  one  science 
and  upon  which  another  may  rely.     Trans. 


§18]         NATURAL  HISTORY  OF  CRIMINAL  MAN  41 

by  experience,  these  studies  in  criminal  anthropology  still  have 
a  great  attraction  for  the  public  mind  which  has  given  our  new 
criminal  school  an  inaccurate  name.  Thus  it  is,  that  through 
the  effects  of  unconscious  tradition,  criminal  anthropologists  are 
often  supposed  to  be  only  phrenologists  and  physiognomists; 
they  are  especially  so  considered  by  the  amateur  critics  with 
whom  we  have  occupied  ourselves  elsewhere.  There  is  a  steady 
advance  from  the  earliest  observations  on  physiognomy  in  Plato, 
who  compares  the  features  and  character  of  man  with  those  of 
animals,  and  in  Aristotle  who  studied  the  physio-psychological 
relations  between  the  features  of  man  and  his  dominant  pas- 
sions, passing  over  the  errors  of  chiromancy,  of  metoscopy,  of 
podomancy,  etc.,  in  the  Middle  Ages,  to  1600,  when  studies  in 
physiognomy  developed  with  the  works  of  the  Jesuit  Niquezio, 
Cortes,  Cardan,  De  la  Chambre,  and  especially  of  the  Neapoli- 
tan, Delia  Porta,  who  openly  combated  the  illusions  of  judicial 
astrology,  and  of  Ingegneri,  whose  works  afford  us  genial  intu- 
itions confirmed  by  recent  labors.^  Such  were  the  immediate  pre- 
cursors of  the  famous  physiognomy  and  phrenology  of  Lavator, 
Gall,  and  Spurzheim,  who  inspired  Lauvergne  in  his  studies  of 
convicts  (1861)  and  Attomyr  (1832),  both  of  whom  lost  themselves 
in  the  exaggerations  of  those  basic  scientific  elements.  Then  in 
the  field  of  scientific  observation  in  the  last  century,  studies  on 
the  expression  of  human  feelings  were  pursued  by  Camper,  Bel, 
Engel,  Burgess,  Duchenne,  Gratiolet,  Piderit,  Mantegazza,  Tebaldi, 
Schaffausen,  Schack,  and  especially  Darwin.  In  the  special 
study  of  delinquents  (aside  from  the  indications  of  the  old  phrenol- 
ogy and  the  opinions  published  by  some  of  the  ancient  Italian 
phrenologists)  in  addition  to  Lauvergne  in  France  and  Attomyr 
in  Germany,  Derolandis  published  in  Italy  the  necroscopy  of  a 

^  As  another  confirmation  of  the  facts  observed  by  criminal  anthropology,  we 
have  the  genial  intuitions  of  art,  which,  from  Greek  tragedy  to  Shakespeare,  from 
Dante  to  the  modems,  and  in  the  masterpieces  of  painting,  have  seized  and  illu- 
minated the  organic  and  psychic  stigmata  of  criminals.  See  Mayor,  "Ico- 
nografia  dei  Cesari"  (Rome,  1885);  Lefort,  "Le  type  criminel  d'apres  les  savants 
et  les  artistes"  (Lyons,  1892);  Patrizi,  "La  psicologia  e  I'anthropologia  criminale 
nel  romanzo  contemporeano"  (Turin,  1892);  Ferri,  "Les  criminels  dans  I'art," 
2d  ed.  (Paris  Alcan,  1902);  Sighele,  "Delitti  e  delinquenti  danteschi"  (Trent, 
1896);  Ziino,  "Shakespeare  e  la  scienza  modema"  (Palermo,  1897);  Niceforo, 
"Criminali  e  degenerati  dell'  Inferno  dantesco"  (Turin,  1898);  Benedikl,  Kri- 
minal  Anthropologic  in  der  Kunst  und  in  der  Wissenschaft, '  in  the  "Deutsche 
Revue"  (February,  1898);  Galante,  "Due  delinquenti  nell'  arte,"  in  the  "Ano- 
malo"  (July,  1898);  Leggiardi,  "I  criminali  in  A.  Manzoni,"  in  the  "Archivio 
di  psichiatria,"  XIX,  349. 


42  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  18 

criminal  (1835).  Felix  Voisin,  in  1837,  presented  to  the  Academy 
a.memorial  "on  the  defective  cerebral  organization  of  the  greater 
portion  of  criminals";  Samson,  in  America,  indicated  the  relations 
between  criminality  and  cerebral  organization;  in  Germany,  Cas- 
per published  a  study  on  the  physiognomy  of  murderers  (1854), 
and  Ave  Lallemant  published  a  voluminous  monograph,  largely 
psychological,  on  German  criminals  (1858-1862). 

It  may  be  said,  however,  that  the  present  movement  in  an- 
thropologico-criminal  studies  began  most  particularly  with  the 
researches  of  some  EngUsh  prison  doctors  and  other  specialists, 
such  as  Winslow  (1854),  Mayhew  (1860),  Thomson  (1870), 
Nicolson  (1872),  Maudsley  (1873),  and  with  that  quite  re- 
markable work  of  Despine  (1868),  which,  with  that  of  Ave 
Lallemant,  represents  (only  in  the  field  of  psychology,  however,) 
the  most  important  efiFort  which  had  preceded  the  work  of  Lom- 
broso.  Yet  it  is  his  work  which  deserves  the  merit  of  having 
made  criminal  anthropology  a  new  and  distinct  branch  of  science 
detached  from  the  trunk  of  general  anthropology,  which  itself 
came  into  being  scarcely  a  century  ago,  with  the  special  labors 
of  Daubenton,  Blumenbach,  Camper,  White,  and  Prichard.  The 
work  of  Lombroso  has  two  original  sins.  The  first  is  that  it  gave 
(but  really  mostly  in  form)  an  excessive  importance  to  craniolog- 
ical  and  anthropometrical,  in  comparison  with  psychological, 
data:  the  second,  that  it  confused  (in  the  first  two  editions)  all 
criminals  La  a  single  type,  distinguishing  only  as  a  special  type 
(in  the  second  edition)  the  authors  of  crimes  of  passion  and  con- 
tradistinguishing the  insane  by  the  description  of  characteristics 
which  differentiate  them  from  real  criminals.^  These  original 
sins,  which  were  corrected  and  avoided,  the  second  particularly, 
in  successive  editions,  in  nowise  obscured  (since  perfection  is 
accorded  to  no  one)  these  two  luminous  facts:  first,  that  im- 
mediately after  the  "Uomo  delinquente"  there  was  published  in 
Italy  and  elsewhere  an  abundant  library  of  criminal  anthropology; 
and  second,  that  then  the  new  school  was  organized  with  an  unity 
of  method,  with  starting  points  and  aims,  with  a  scientific  fertil- 
ity theretofore  unknown  to  classical  criminal  science. 

*  The  fifth  edition  of  "L'uomo  delinquente"  (TWin,  1877)  is  divided  into 
three  volumes,  of  which  the  first,  treating  of  the  bom-crimiHal,  has  already  been 
translated  into  several  languages.  The  second  treats  (not  to  mention  the  moral 
and  epileptic  insane)  of  the  other  criminal  tj^pes;  criminals  by  passion,  insane 
(alcoholic,  hysterical,  mattoid),  occasional,  habitual.    The  third  volume  treats  of 


§  19]        NATURAL  HISTORY  OF  CRIMINAL  MAN  43 

§  19.  The  Methods  of  the  Anthropological  Criminal  School. 

What  then  is  this  criminal  anthropology?  What  are  the  data 
that  it  has  collected  up  till  now  and  which,  henceforward,  as 
partial  syntheses,  will  permit  the  general  principles  of  the  law  of 
social  defense  to  be  traced  and  consequently  direct  and  support 
the  inductions  of  criminal  sociology?  Since  general  anthropol- 
ogy, according  to  the  definition  of  Quatrefages,  is  "the  natural 
history  of  man  as  zoology  is  the  natural  history  of  animals," 
criminal  anthropology  is  but  the  study  of  a  human  variation  of 
a  particular  type;  hence  it  is  the  natural  history  of  criminal  man, 
the  same  as  psychiatric  anthropology  is  the  natural  history  of 
demented  man.  That  is  to  say  that  it  undertakes  those  studies 
of  the  criminal's  organic  and  psychical  constitution  and  social 
life  or  relations,  which  the  anthropologist  has  undertaken  for  man 
in  general  and  for  the  different  human  races.  This  suffices  to 
explain  the  wonderful  success  in  results  which  have  already  en- 
riched this  new  science.  Furthermore,  as  anthropology  in  the 
study  of  man  in  general  has,  by  virtue  only  of  its  method  of  obser- 
vation and  experiment,  recorded  such  astonishing  successes  in  so 
few  years  in  comparison  with  the  ancient  philosophy  or  "a  priori" 
psychology,  —  so,  in  the  study  of  crime  and  of  the  criminal,  this 
subdivision  of  anthropology  has  recorded  surprising  successes  in 
comparison  with  the  classical  criminal  science,  thanks  only  to  the 
efficacy  of  substituting  the  positive  for  the  "a  priori"  method  of 
pure  subjective  observation.  And  as  I  have  already  said,  while 
the  classical  jurists  studied  and  still  study  crimes  in  their  abstract 
form,  starting  with  the  "a  priori"  supposition  that  he  who  com- 
mits a  crime  (save  in  the  exceptional  and  evident  cases  of  infancy, 
insanity,  drunkenness,  or  physical  disability)  is  a  man  like  other 
men,  endowed  with  intelligence  and  normal  feelings,  the  criminal 
anthropologists  on  the  contrary  submit  the  criminal  to  a  direct 
examination  on  the  dissecting  table,  in  the  physiological  labora- 
tories, prisons,  and  insane  asylums,  both  organically  and  psychi- 
cally comparing  his  characteristics  with  those  presented  by  the 
normal  and  the  insane.  Now,  these  physical  and  psychical 
observations  have  led  the  anthropologists  to  affirm  and  have  also 
proved  that  criminal  man  not  only  (as  the  English  authors  first 
said)  may  belong  to  an  "intermediate  zone"  between  the  sane  and 

the  etiology,  the  prophylaxis,  and  the  therapy  of  crime  with  a  synthesis  and  penal 
applications. 


44  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  19 

the  insane,  but  that  he  constitutes,  strictly  speaking  (as  Lom- 
broso  showed  and  as  others  since  have  become  convinced),  a  dis- 
tinct anthropological  variety  which  presents  special  traits  both 
from  the  point  of  view  of  pathology  and  from  that  of  degeneracy 
and  atavism;  and  that,  especially  in  these  latter  traits,  he  repre- 
sents the  inferior  races  in  our  actual  civiUzation;  and  finally,  that 
he  is  in  every  respect  different  from  the  normal  type  of  healthy, 
well-developed,  and  civiUzed  man.  Indeed,  this  idea  that  crim- 
inal man,  particulariy  in  his  most  characteristic  type,  is  a  savage 
in  our  civilization,  had  doubtless  been  indicated  by  Mayhew,  Eu- 
gene Sue,  Despine,  Lubbock,  and  others^  before  Lombroso.  But 
this  fact  should  not  be  taken,  as  these  authors  thought,  in  a  purely 
literary  sense.  Its  scientific  value  should  be  strictly  recognized 
in  relation  to  the  Darwinian  or  genetico-experimental  method, 
as  Vignoli^  calls  it,  and  conformably  to  the  whole  natural  principle 
of  evolution.  In  my  opinion,  one  of  the  greatest  scientific  bene- 
fits which  criminal  anthropology  owes  to  Lombroso  is  precisely 
that  he  illumined  the  study  of  the  criminal  man  of  to-day,  with 
the  idea  that  he,  whether  by  an  atavistic  return,  degeneracy, 
arrested  development,  or  some  pathological  condition,  truly  re- 
produces the  organic  or  psychical  traits  of  primitive  humanity. 
The  idea  is  most  happy,  since,  supplemented  with  that  other  idea 
of  Sergi'  "on  the  stratification  of  character,"  it  explains  at  a 
glance  the  why  and  how  of  the  most  singular  traits  of  the  typical 
criminal,  especially  from  the  psychological  point  of  view.     These 

^  Lubbock,  "The  Origin  of  Civilization  and  the  Primitive  Condition  of  Man'* 
(London,  1889),  indicates  this  idea  in  passing:  "In  reality  our  criminal  population 
is  composed  of  pure  savages  whose  crimes  are  largely  but  senseless  and  desperate 
efforts  to  act  as  savages,  in  the  midst  and  at  the  expense  of  a  civilized  society." 
Before  him  Despine,  "Psychologic  naturelle"  (1868),  III,  p.  300,  has  said  that 
"  brigandage  could  be  defined  as  the  savage  state  in  the  midst  of  a  civilized  people." 
This  had  already  been  expressed  by  Eugene  Sue  from  familiar  studies  from  nature, 
in  the  first  chapter  of  " Myst^res  de  Paris."  Mayhew,  in  turn  wrote:  "It  has  been 
noted  that  in  our  cities  the  dangerous  classes,  who  are  vagabonds  and  savages, 
present  the  same  anthropological  traits  as  the  nomadic  tribes,  KafiSrs,  Fellahs, 
etc.  and  in  their  faces  show  a  great  development  of  the  jaws."  "London  Labor 
and  London  Poor"  (1847,  p.  4). 

*  Vignoli,  "Carlo  Darwin  et  il  pensiero,"  in  the  "Rivista  de  filosofia  scienti- 
fica,"  III,  270. 

'  Sergi,  "La  stratificazione  del  carattere  e  la  delinquenza,"  R.  F.  S.  (April, 
1883).  The  concept  was  already  indicated  by  Ardigb,  "Relativity  della  logica 
umana,"  in  the  "Cronaca  Bizantina"  (15  August,  1881),  and  in  his  works,  vol.  Ill 
(Padua  1885),  p.  418.  This  idea  of  stratification  for  social  evolution  in  relation  to 
the  different  classes  had  also  been  indicated  by  Ray  Lancaster,  "De  la  deg6n6- 
rescence,"  in  the  "Revue  Internationale  des  sciences  biologiques"  (1882). 


§20]         NATURAL  HISTORY  OF  CRIMINAL  MAN  45 

traits  are  abnormal  in  civilized  men,  but  common  and  normal 
among  the  inferior  races.  It  is  a  further  guide  in  the  ulterior 
study  of  the  anthropological  characteristics  of  the  criminal  in 
showing  his  methods  when  barbarous  and  savage.  In  the  savage, 
and  also  in  the  civilized  child,  the  law  formulated  by  Haeckel  ^ 
"that  for  physical  organisms,  the  development  of  the  individual 
('ontogenie')  reproduces  and  resumes  the  phases  of  development 
of  the  species  that  have  preceded  it  in  the  zoological  series 
('phylogenie')"  should  be  supplemented  by  the  observations 
of  Lilienfeld,  Spencer,  Perez,  Preyer,  and  others  extending  it  to 
the  psychical  development.^  It  is  precisely  thus  that  the  typical 
criminal,  aside  from  his  traits  of  an  adult  savage,  reproduces  also, 
while  retaining  them  permanently,  the  traits  which  in  a  civilized 
man  are  appropriate  to  infancy,  and  hence  transitory.  Thus  what 
is  so  accurately  said  of  savages  (that  they  are  big  children)  can  be 
said  with  truth  of  the  criminals  who,  without  mentioning  the  most 
striking  cases  of  real  infantilism,'  are  always  in  a  state  of  prolonged 
infancy.^  Consequently  this  idea,  drawn  as  one  can  see  from  the 
natural  principle  of  evolution,  is  sufficient  to  make  instantly 
comprehensible,  even  to  those  who  are  not  initiated  in  the  an- 
thropological sciences,  the  entire  value  of  the  new  data  of  criminal 
anthropology. 

§  20.  Value  of  Anthropological  Data  in  Anthropology  and  Criminal 
Sociology. 

But  with  respect  to  this  data,  before  briefly  summing  it  up 
here,  and  even  before  replying  to  the  principal  objections  it  has 
aroused,  it  is  important  to  insist  on  a  general  consideration  already 

^  Haeckd,  "Anthropogenie,"  Lee.  I,  p.  5. 

*  Majorana  later  developed  this  thought  in  his  work,  "Ipostesi  di  una  legge 
di  embriologia  sociale,"  in  the  "Archivio  di  diritto  pubblico,"  I,  fasc.  1. 

^  Brouardel,  "De  I'enfance  des  criminels  dans  ses  rapports  avec  la  predisposi- 
tion naturelle  au  crime,"  in  the  "Actes  du  congres  d'anthropologie  criminelle" 
(Paris  1890),  p.  385;  Meige,  "L'infantilisme,"  in  the  "Revue  intemationale  de 
medicin  et  de  chirugie"  (1898),  No.  6. 

*  Lombroso  and  Marro  "I  germi  del  delitto  e  della  pazzia  morale  nei  fanciuUi," 
A.  P.  (1883),  pp.  7  and  153;  Lombroso,  "L'uomo  delinquente,"  I,  pp.  98  etseq.;  Perez, 
"Les  trois  premieres  annees  de  I'enfant."  —  "L'enfant  de  trois  k  sept  ans."  — 
"L'education  morale  dfe  le  berceau"  (Paris,  1894-96);  Preyer,  "Die  Seele  des 
Kindes"  (Leipsic,  1882);  Compayre,  L' evolution  intellectuelle  et  morale  de 
l'enfant,"  2d  ed.  (Paris,  1896);  Baldwin,  "Le  devellopement  mental  chez  l'enfant 
et  dans  la  race";  Anfossi,  "L'onestS.  nei  bambini,"  A.  P.  XVIII,  531;  Paola 
Lombroso,  "Saggi  psicologici  sui  bambini"  (Turin,  1896);  Schinz,  "La  morality 
de  l'enfant,"  in  the  "Revue  philosophique,"  March,  1898,  and  SuUy,  "Etudes 
sur  I'enfance"  (Paris,  1898). 


46  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§20 

advanced  by  me  in  previous  editions  but  which  the  opponents  of 
the  new  school  have  found  it  convenient  to  disregard  in  their 
biased  criticisms:  The  technical  value  of  the  anthropological  data 
on  the  criminal  must  be  distinguished  from  its  scientific  value  in 
criminal  sociology.  To  the  criminal  anthropologist  who  is  con- 
cerned with  the  natural  history  of  the  delinquent,  all  of  the  data 
has  its  own  anatomical,  physiological,  or  psychological  value, 
regardless  of  the  sociological  deductions  that  may  be  drawn  from 
it.  This  is  why  the  technical  side  of  the  continuous  detailed 
researches,  on  the  organic  and  psychic  constitution  of  the  criminal, 
is  the  field  reserved  to  the  new  autonomous  science  of  criminal 
anthropology.  On  the  other  hand,  to  the  criminal  sociologist 
this  data,  which  is  the  culmination  of  anthropology,  is  but  the 
point  of  beginning  in  reaching  juridico-social  conclusions  which 
escape  the  special  competence  of  the  anthropologist.  It  may  be 
said,  in  fact,  that  criminal  anthropology  is  to  criminal  sociology 
what  the  biological  sciences,  both  descriptive  and  experimental, 
are  to  the  clinic.^  That  is  to  say,  that  as  the  clinical  physician 
is  not  bound  independently  to  sound  the  depths  of  anatomy  and 
physiology  he  must  at  least  know  their  final  indicia  in  order  to 
draw  his  diagnostic  and  therapeutic  inductions;  so  the  criminal 
sociologist  is  satisfied  with  being  an  adept  in  the  juridico-social 
sciences  and  consequently  is  not  obliged  to  make  his  own  anthropo- 
logical studies  of  the  criminal.  His  sole  scientific  duty  is  to  take 
as  the  basis  of  his  inductions,  not  the  syllogistic  premises  of  crime 
considered  as  an  abstract  entity,  but  rather  the  positive  data  of 
the  individual  causes  of  criminality  furnished  by  criminal  an- 
thropology together  with  the  determined  external  causes  of  crime 
furnished  by  criminal  statistics.  Assuredly,  as  happened  at  the 
inception  of  the  new  school,  the  criminal  sociologist,  not  content 
with  reading  the  works  on  criminal  anthropology,  may  make  his 
own  personal  studies  on  the  physical  and  psychical  constitution 
of  criminals  and  thereby  derive  the  paramount  advantage  flowing 
from  the  secret  of  the  positive  method,  for  direct  observation  of 
a  single  fact  is  more  profitable  than  the  reading  of  several  volumes. 
At  all  events,  in  our  opinion  the  technical  study  of  criminal  an- 
thropology is  not,  as  some  would  have  made  us  assert,  a  profes- 
sional obligation  for  the  criminal  sociologist.  He  is  bound  only 
to  rely  upon  the  synthetic  and  final  notions  of  anthropology, 

*  See,  on  a  similar  subject:    Lester  Ward,  "Relation  of  Sociology  to  Anthro- 
pology," in  the  "American  Anthropologist"  (July,  1896). 


§20]         NATURAL  HISTORY  OF  CRIMINAL  MAN  47 

psychology,  and  statistics  which  those  sciences  furnish  him.  Then 
again,  one  understands  how  many  questions  which  directly  interest 
criminal  anthropology  with  respect  to  the  accuracy  or  even  the 
biologic  interpretation  of  some  special  data,  may  concern  criminal 
sociology  only  in  a  secondary  manner.  For  this  reason  the  ques- 
tion is  not  well  put  by  Messedaglia  and  others,  in  the  form, 
"what  relation  can  there  be  between  a  more  or  less  elevated 
cephalic  index  and  a  propensity  to  homicide?"^  or,  "what  is  the 
relation  between  a  frontal  protuberance  and  the  responsibility  of 
him  who  has  it?"  for  such  is  not  the  scientific  function  of  an- 
thropological data  in  criminal  sociology.  The  only  legitimate 
decision  that  we  may  demand  of  the  anthropologists  is  this:  "Is 
the  criminal  always  or  in  what  cases  is  he  a  normal  or  an  abnormal 
man.'*  And  if  abnormal,  whence  comes  this  abnormality?  Is  it 
congenital  or  acquired,  corrigible  or  incorrigible?  "  This  is  all  we 
can  ask  of  criminal  anthropology  and  it  suffices  for  the  jurist  or, 
to  express  it  better,  for  the  criminal  sociologist  in  the  making  of 
his  deductions  on  the  necessity  and  the  forms  of  social  defense 
against  crime,  as  from  other  points  of  view  he  demands  other 
data  of  criminal  statistics.  To  come,  then,  to  a  summary  indica- 
tion of  the  principal  results  hitherto  established  by  criminal  an- 
thropology (referring  the  reader  to  the  numerous  special  treatises 
for  minute  details),^  we  must  bear  in  mind  that  the  criminal  is 
studied  under  the  two  inseparable  and  fundamental  aspects  of 
animal  life  and  human  hfe  which  constitute  man  organically  and 
psychically.  Naturally  the  organic  study  comes  first,  not  only 
because  the  organ  which  is  the  physical  basis  must  be  studied  before 
the  function,  but  also  because,  in  a  fight  with  the  unknown  (which 

^  Messedaglia,  "  Le  statistica  dellacriminalita,"  in  the  "Archivio  di  statistica," 
III  (Rome,  1878). 

*  The  fifth  edition  of  "L'uomo  delinquente"  of  Lomhroso,  contains  the  most 
complete  and  most  analytical  exposition  of  it.  Among  the  jurists  and  sociologists 
the  following  summaries  may  be  sufficient:  Riccardi,  "Dati  fundamentali  di  an- 
thropologia  criminale,"  in  the  "Trattato  di  diritto  penale"  (published  by  Cogliolo, 
Milan,  1889),  Vol.  I,  Part  III;  Corre,  "Les  criminels"  (Paris,  1889);  Havelock 
Ellis,  "The  Criminal"  (London,  1890);  Francotti,  " L'anthropologie  criminelle" 
(Paris,  1891);  Kurella,  "  Naturgeschichte  des  Verbrechers"  (Stuttgart,  1893); 
MacDonald,  "Criminology,"  1st  part  (New  York,  1893);  Dallemagne,  "Stigmates 
anatomiques"  (Paris,  1896),  "Stigmates  bio-sociologiques  de  la  criminalit6" 
(Paris,  1896),  2d  volume;  —  and  especially:  Severi,  "L'uomo  criminale"  in  the 
"Manuale  di  medecina  legale"  of  Filippi,  2d  ed.  (Milan,  1897),  Vol.  Ill;  Angio- 
sella,  "Manuale  di  antropologia  criminale"  (Milan,  1898).  For  researches  to  be 
made  on  criminals  see  Ottolenghi,  "Prospetto  sinottico,"  in  the  "Rivista  di  polizia 
scientifica"  (November,  1897),  p.  119. 


48  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§21 

scientific  research  is)  it  is  necessary  to  adopt  the  tactics  of  a  siege, 
beginning  with  the  occupation  and  knowledge  of  distant  points 
in  order  gradually  to  reach  the  more  central  points  most  directly 
involved  in  the  ultimate  phenomenon  whose  natural  conditions 
are  to  be  determined.  This  is  why  the  reproach,  heretofore  so 
commonly  applied  to  criminal  anthropology,  that  it  adheres  too 
much  to  the  study  of  the  craniology  of  the  delinquent  (which  is, 
people  rightly  say,  far  from  indicating  the  immediate  determinants 
of  crime),  would  perhaps  be  well-founded  if  it  made  any  pretension 
to  be  limited  to  this  study.  But  there  is  nothing  serious  in  the 
objection  for  one  who  knows  that,  as  the  organic  study  of  the  de- 
linquent is  only  the  preface  to  the  psycho-sociological  study  which 
is  to  follow  it,  so  hkewise  in  the  organo-logical  field  the  most  remote 
researches  on  the  cranium,  on  physiognomy,  etc.,  are  but  the 
zigzags  and  parallels  of  a  siege  which  are  always  and  which  already 
with  marked  predominance  have  been  followed  up  and  perfected 
by  more  direct  researches  on  the  brain  (morphology,  intimate 
structure,  and  pathology)  and  on  the  biological  conditions  of  the 
organism.  This  has  been  demonstrated  by  the  bibUography  of 
even  the  last  few  years. 

§  21.  Craniological  Data. 

In  the  meantime,  with  respect  to  the  craniological  data,  espe- 
cially in  the  case  of  the  two  most  marked  types  of  criminal,  the 
murderer  and  the  thief,  representing  two  fundamental  and  primi- 
tive forms  of  criminal  activity,  there  has  been  shown  a  general 
inferiority  in  the  forms  of  the  skull  coupled  with  a  greater 
frequency  of  atavistic  and  pathological  anomalies  often  extraor- 
dinarily accumulated  in  the  same  individual.  Further,  the 
examination  of  the  brains  of  criminals  revealing  a  morphological 
and  histological  inferiority  in  the  thinking  organ,  has  also  per- 
mitted the  demonstration  of  a  very  noticeable  frequency  of  patho- 
logical conditions  which  in  most  instances  would  not  have  drawn 
attention  to  the  individual  during  life.  So  true  is  this  that  Dally 
quite  a  long  time  ago  declared  that  "all  the  criminals  (decapitated) 
on  whom  he  made  an  autopsy  showed  cerebral  lesions."  * 

*  Daily,  "Discussion  before  the  Society  de  la  medicine  psychologique  de  Paris" 
in  the  "  Annales  de  la  medicine  psychologique"  (1881),  I,  pp.  93,  266,  280,  483. 


§22,  23 J    NATURAL  HISTORY  OF  CRIMINAL  MAN  49 

§  22.  Physical  Data. 

The  researches,  made  on  other  parts  of  the  body,  have  also 
estabUshed  singular  characteristics  from  the  most  exterior,  such 
as  tattooing,  down  to  the  most  hidden,  such  as  profound  congenital 
anomalies  in  the  conformation  of  the  skeleton  and  of  the  viscera 
or  in  pathological  conditions  which  have  supervened.  Again, 
researches  lately  made  on  the  exchange  of  physiological  materials 
in  the  organism  of  criminals,  and  especially  on  their  general  sensi- 
bility to  pain,  on  each  of  their  senses  and  on  their  physiological 
reaction  to  exterior  stimulation,  in  tests  with  sphygmographic 
appliances,  have  disclosed  in  a  very  large  number  of  them  ab- 
normal conditions  all  resulting  in  an  extraordinary  physical  in- 
sensibihty  (whence  their  resistance  to  wounds, and  their  longevity), 
which,  when  measured  by  the  scale  of  an  algometer  or  the  curve 
of  the  sphygmograph,  show  the  material  base  and  the  speaking 
counterpart  in  the  physical  make-up  of  that  moral  insensibility 
which  reveals  the  fundamental  anomaly  of  their  psychic  constitu- 
tion. Again,  these  organic  conditions  which  may  be  more  or  less 
evident  but  which  will  be  more  and  more  clearly  unmasked  by 
further  studies,  give  us  the  only  intelligible  explanation  of  the 
singularly  eloquent  phenomenon:  The  hereditary  transmission 
from  generation  to  generation  of  criminal  tendencies  as  of  any 
other  physical  or  moral  deformity.^ 

§  23.  Criminal  Psychology ;  Moral  Insensibility  and  Lack  of  Foresight. 

The  study  of  criminal  psychology  has  a  greater  importance  and 
a  more  direct  relation  with  criminality  than  the  purely  organic 
study  (both  for  us  and  for  Lombroso  himself  in  his  later  editions).'' 

*  A  few  years  ago  there  was  a  current  of  thought  among  the  naturalists  which, 
following  the  purely  logical  and  non-experimental  hypotheses  of  Weissman,  "Es- 
sais  sur  I'  heredite"  (Paris,  1882),  denied  the  hereditary  transmission  of  acquired 
traits.  But  to-day,  Weissmanism  has  gone  out  of  fashion,  conquered  by  Dar- 
winism (renewed  with  Lamarckism)  because  logical  fancies,  no  matter  how  seduc- 
tive, are  always  less  durable  than  the  positive  observation  of  facts.  See  Le 
Dantec,  "Les  neo-darwiniens  et  I'heredite  des  caracteres  acquis,"  R.  P.  (January, 
1899). 

^  And  yet  most  of  our  critics,  while  they  dallied  beyond  measure  with  syllo- 
gistic and  non-experimental  tests  of  each  of  the  anatomical  data  of  criminal  anthro- 
pology (and  almost  exclusively  in  relation  to  the  skull),  still  kept  a  prudent  or  a 
too  frivolously  shifty  silence  on  the  much  more  imposing  whole  series  of  data  of 
criminal  psychology.  Yet  this  fixed  idea  that  all  criminal  anthropology  is  reduced 
to  the  measurement  of  the  skull  was  again  repeated,  in  August,  1896,  at  the  Con- 
gress of  German  Naturalists  at  Speyer  by  Virchow  (in  a  communication  on  crim- 


50  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§23 

Besides  giving  us  certain  characteristic  traits,  I  might  almost  say 
a  descriptive  order,  such  as  the  jargon,  the  peculiar  writing,  the 
hieroglyphics  and  the  special  literature  of  the  criminal,  this  study 
further  offers  us  a  series  of  data  which,  corresponding  with  those 
we  have  mentioned  from  the  organic  point  of  view,  has  shed  Ught 
on  the  individual  genesis  of  crime.  These  psychological  indicia, 
unless  I  am  in  error,  should  be  traced  to  two  fundamental  forms 
of  anomalies,  corresponding  with  the  two  psychological  determi- 
nants of  every  human  action,  sentiment,  and  idea,  that  is  to  say, 
is  traced  to  moral  insensibility  and  to  lack  of  foresight.  Moral 
insensibihty,  much  more  congenital  than  acquired,  whether  total 
or  partial,  is  disclosed  in  sanguinary  as  in  other  crimes,  by  a  series 
of  manifestations  which  I  might  reproduce  here  but  which  are  all 
reducible  in  the  majority  of  criminals  to  the  following  two  condi- 
tions of  moral  and  social  feeling:  non-repugnance  to  the  idea  or 
to  the  criminal  act  before  the  crime  and  absence  of  remorse  after 
the  crime. 

These  conditions  are  clearly  quite  removed  from  the  normal 
psychic  constitution  of  honest  men  or  of  men  exceptionally 
drawn  to  crime  rather  by  the  comphcity  of  their  environment 
than  by  the  impulse  of  their  own  physical  and  moral  personality. 
They  are  not  only  different  in  themselves  but  in  the  attitude  which 
they  determine  in  all  the  other  sentiments  egoistic  or  altruistic 
of  criminals.  Among  such  persons  the  feelings  appropriate  to  a 
normal  man  of  the  class  to  which  they  belong  are  not  at  all  lack- 
ing; only,  instead  of  being  forces  opposed  to  crime,  such  as  the 
sentiments  of  religion,  honor,  friendship,  or  love,  they  either  are 
quiescent  in  the  moral  dynamics  or  else  themselves  become  stim- 
ulants of  crime,  such  as  the  sentiments  of  pride,  vengeance,  or 
cupidity,  as  well  as  the  sense  of  self-indulgence,  which  is  savagely 
unchained  in  the  passions  of  eroticism,  gaming,  gluttony,  and 
intemperate  revelry.  With  this  moral  insensibility,  which  from 
the  psychic  point  of  view  is  the  first  cause  of  crime  viewed  as  an 
exterior  manifestation  of  individual  tendencies,  there  is  combined 
lack  of  foresight  which  is  determined  by  insuflficient  force  in  the 
association  of  ideas  and  which  also  is  betrayed  by  different  mani- 
festations all  concurring  to  destroy  the  last  resistance  to  crime, 
which  would  come  properly  from  foreseeing  the  painful  con- 
sequences which  must  ensue.     It  is  to  these  traits  of  fimdamental 

inal  anthropology),  to  whom  Lombroso  replied  point  for  point.  "Zukunft" 
(August,  1896),  and  "Idea  liberale"  (27  Sepember,  1896). 


§23]         NATURAL  HISTORY  OF  CRIMINAL  MAN  51 

psychic  anomaly  that  we  can  trace  in  the  greater  part  of  criminals 
the  exaggerated  and  unbalanced  impulsiveness  which  determines 
abnormal  and  criminal  activity  and  which  is  one  of  the  most 
striking  characteristics  in  the  psychology  of  the  savage  and  the 
child.  Such  then,  in  general  outline,  are  the  data  of  criminal 
anthropology,  with  respect  to  the  organic  and  psychic  make-up  of 
the  criminal.^  If  a  technical  and  analytical  examination  of  this 
data  is  out  of  place  here,  general  criminal  sociology  will  have 
before  it  on  one  hand,  a  series  of  objections,  not  partially  but 
fundamentally  opposed  to  these  anthropological  features,  and  on 
the  other,  the  field  once  freed  from  these  more  or  less  syllogistic 
obstacles,  a  problem  of  capital  importance,  not  only  from  the 
point  of  view  of  exact  scientific  knowledge  of  anthropologico- 
criminal  data  but  especially  from  the  practical  and  social  point 
of  view,  for  the  study  of  the  most  available  means  in  the  fight 
against  crime. 

^  I  have  published  an  annotated  study  of  the  data  of  criminal  psychology 
in  my  volume  entitled  "  L'omicidio  nell'  anthropologia  criminale, "  accompanied 
by  a  statistical  anthropological  atlas  (Bocca,  1895). 


CHAPTER  II 

FUNDAMENTAL    OBJECTIONS   TO    DATA    OF    ANTHROPOLOGY 

Methods.  Scientific  assumption.  Disagreement  of  data.  Criminal  traits  in 
honest  men.  Historical  and  anthropological  indetermination  of  crime. 
Definition  of  crime.  The  criminal  type.  Origin  and  nature  of  crim- 
inality. 

§  24.  Objections  Advanced  Against  Criminal  Anthropology. 

While  leaving  to  polemical  writings  published  elsewhere  the 
care  of  replying  to  criticisms  which  are  partial  or  inspired  by 
philosophical  and  juridical  traditionalism/  we  consider  it  proper 
to  recapitulate  the  fundamental  objections  which  either  a  single 
critic  or  at  times  several  have  directed  in  a  scientific  spirit  to  the 
methods  and  general  conclusions  of  criminal  anthropology;  they 
bear  on  the  following  points: 

I.   Methods  employed  in  the  study  of  criminals. 
II.   Scientific  assumption  of  criminal  anthropology. 
III.   Qualitative  and  quantitative  disagreements  in  the  data 

of  criminal  anthropology. 
rV.   The  presence  of  criminal  traits,  even  in  honest  people  on 
the  one  hand,  and  on  the  other  in  the  non-criminal 
insane  and  in  degenerates  in  general. 
V.  The  historical  and  anthropological  indetermination  of 

crime. 
VI.   Non-existence  of  the  anthropological  criminal  type. 
VII.    Divergences  in  the  scientific  determination  of  the  origin 
and  nature  of  delinquency. 

§  26.  Methods  Employed  in  the  Study  of  Criminals ;  Small  Number 
of  Criminals  Examined. 

The  criticisms  directed  at  the  method  employed  in  the  study 
of  criminals  were  two :  small  number  of  the  individuals  examined, 

*  "Polemica  in  difesa  della  scuola  criminale  positiva"  (Bologna,  1886);  "Uno 
spiritista  del  diritto  penale"  (in  reply  to  Lucchini,  "I  sempKcisti"),  A.  P.  (1887), 
fasc.  1,  2.  Preface  of  the  Spanish  edition  of  "Nuovi  orizzonti"  (Madrid,  1887) 
(in  reply  to  the  book  of  De  Aramburu);  works  collected  in  Ferri,  "Studi  sulla  cri- 
minalitlL  ed  altri  saggi." 


§25]  FUNDAMENTAL  OBJECTIONS  TO  DATA  53 

and  inexactness  of  comparison  between  criminals  and  normal 
persons.  Our  adversaries  have  finally  abandoned  the  first  criti- 
cism. As  early  as  1893  Lombroso,  in  enumerating  the  de- 
linquents studied  only  from  the  biological  point  of  view  by 
anthropologists,  computed  their  number  at  fifty-four  thousand, 
delinquents,  insane,  and  normal  individuals,  ^  without  considering 
that  this  number  would  be  greatly  increased  if  there  were  added 
the  dehnquents  who  have  been  studied  only  from  the  psycho- 
logical standpoint  through  the  records  of  their  trials  and  the 
medico-legal  experts,  and  that  the  whole  number  has  greatly 
increased  since  1893.  If,  with  such  immense  materials  for  study 
at  hand,  the  objection  were  made  that  this  number  is  insignificant 
compared  with  the  hundreds  of  thousands  of  delinquents  and 
consequently  is  rendered  valueless  by  the  law  of  great  numbers, 
we  might  have  something  to  say  in  reply.  First  of  all,  it  is  a 
metaphysical  prejudice  not  to  accord  importance  to  what  are 
called  isolated  facts.  Nature  has  no  isolated  facts,  because  each 
fact  thus  denominated  is  the  index  and  the  symptom  of  a  system 
of  causes  and  of  laws.  Scientific  discoveries  always  spring  from 
the  attention  bestowed  upon  those  isolated  facts  which  are  com- 
monly termed  accidental  or  exceptional.  Rumelin  rightly  said 
that  the  secret  of  the  great  progress  in  natural  sciences  is  to  be 
found  in  the  rule  that  "in  nature,  each  particular  case  may  serve 
as  a  type."  ^  In  the  second  place,  let  us  hasten  to  recall,  even  in 
reference  to  the  anthropological  deductions,  a  biological  law  which 
in  my  opinion  should  be  combined  with  the  law  of  great  numbers, 
namely,  the  law  by  which  in  general,  biological  evidences  of  the 
greater  importance  are  subject  to  slight  variations.'  It  is  easy 
to  give  a  great  many  proofs  of  this:  for  instance,  if  the  length  of 
the  arm  may  vary  by  several  centimeters  in  different  men,  on  the 
other  hand  the  width  of  the  forehead  can  vary  only  by  a  few 
millimeters.^     Hence,  this  evident  consequence,  that  in  anthropo- 

^  Lombroso,  "Le  piii  recenti  scoperte  ed  applicazione  dell'anthropologia  cri- 
minale"  (Turin.  1893),  p.  VI. 

*  Rumelin,  '' Problem es  d'economie  politique  et  de  statistique"  (Paris,  1896), 
p.  87. 

*  QuHdet,  "Fisica  sociale",  in  the  "Biblioteca  dell'Economia,"  pp.  636-637; 
"  Antropometria,"  ibid.,  pp.  983,  1004;  Topinard,  "Anthropologie"  (Paris,  1879), 
3d  edition,  p.  225;  Milne- Edwards,  "Introduction  to  General  Zoology,"  pp.  9  et  seq.; 
Messedaglia,  "Di  alcuni  argomenti  di  statistica  teorica,"  in  A.  S.  (1880),  see  p. 
26;    Dallemagne,   "Stigmates  economiques  de  la  criminalite"  (Paris,  1896),  p.  43. 

*  This  does  not  contradict  what  Darwin  said  of  the  variations  even  of  the 
most  important  organs  among  individuals  of  the  same  species,  "  On  the  Origin  of 


54  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§25 

logical  researches  the  necessity  for  great  numbers  is  in  a  direct 
ratio  with  the  variability  of  the  characteristics  studied  or  in  an 
inverse  ratio  with  their  biological  importance.  It  may  be  stated, 
therefore,  not  that  the  criticisms  of  the  haste  of  many  anthro- 
pologists (especially  in  the  beginnings  of  the  science)  to  draw 
conclusions  from  very  rare  observations,  are  entirely  without 
foundation,  but  that  the  law  of  numbers  shoidd  be  conceded  a 
"rationabile  obsequium."  That  law  does  not  in  fact  teach  us 
the  precise  moment  when  the  appreciable  value  of  observations 
begins  and  its  value  therefore  is  entirely  relative;  it  means  only 
that  the  weight  of  one  hundred  observations  is  less  than  that  of 
one  thousand,  but  not  that  such  weight  is  null.  It  does  not  even 
say  that  the  value  of  one  thousand  observations  is  ten  times  the 
value  of  one  hundred.  The  positive  value  of  a  conclusion  com- 
mences with  the  first  observation  and  increases,  but  in  a  decreas- 
ing progression  relatively  to  the  number  of  observations,  and  the 
need  of  great  numbers  is  regulated  by  the  diverse  variability  in 
the  elements  studied;  ^  so  that,  if  these  elements  were  absolutely 
invariable  it  would  be  enough  to  study  a  single  one,  in  order  to 
extend  the  deduction  to  all  the  others.^  Thus  Quetelet  was 
convinced  that  it  was  not  necessary  to  repeat  his  anthropo- 
metrical  researches  on  a  great  number  of  subjects,  to  determine 
characteristics  which  have  a  restricted  limit  of  variations;  Broca, 
for  example,  fixes  the  number  "of  subjects  of  a  type  series  at 
twenty"  for  craniological  and  anthropometrical  studies;'  and 
Durkheim  rightly  says,  following  Bacon,  that  it  is  inexact  to  say 
that  "  science  cannot  establish  laws  until  after  passing  in  review 
all  the  facts  which  the  laws  express."  *  In  criminal  statistics,  on 
the  other  hand,  where  these  limits  are  broader,  it  has  been  recog- 

Species"  (London,  1888);  he  speaks  of  absolute  differences  between  individuals 
while  we  are  here  considering  the  d^ree  of  relative  variability  in  the  various 
anthropological  characteristics. 

^  Thus,  in  my  anthropological  studies  on  homicides  I  demonstrated  that  the 
partial  and  numerically  limited  series  often  reproduce  the  disposition  of  entire 
and  numerically  strong  series.    "Omicidio"  p.  203,  204. 

*  Schaeffle,  "Bau  und  Leben  des  Socialies  Korpers,"  VII,  109,  cites  the  opin- 
ion of  Lotze,  "Logica,"  §  287,  who  denies  to  the  so-called  "law  of  great  numbers" 
the  true  character  of  a  law,  since  it  does  not  in  itself  contain  any  necessary  conse- 
quence, being  given  the  premise  which  constitutes  its  object,  while  this  is  not  true 
of  all  real  natural  laws.  See  also  Rumelin,  for  a  notion  of  a  social  law,  in  the  "  Pro- 
blames  d'economie  politique  et  statistique"  (Paris,  1896),  p.  15;  and  Tammeo,  "La 
statistica"  (Turin,  1896),  p.  173. 

'  Broca,  "Instructions  anthropologiques  generales"  (Paris,  1879),  pp.  188,  189. 

*  Durkheim,  "Les  r^les  de  la  methode  sociologique"  (Paris,  1895),  p.  97. 

'v 


§26]  FUNDAMENTAL  OBJECTIONS  TO  DATA  55 

nized,  as  we  shall  see,  that  the  deductions  of  Quetelet  were  prema- 
ture because  based  upon  only  a  few  years;  but  this  fact  confirms 
rather  than  contradicts  the  preceding  observations.  Finally, 
there  is  a  decisive  consideration:  we  are  entitled  to  presume  that 
these  positive  deductions  represent  the  truth  until  proof  is  made 
of  the  contrary,  consisting  not  in  abstract  syllogisms  or  vague 
objections  but  in  other  not  less  positive  deductions  drawn  from 
an  equal  or  greater  number  of  observed  facts.  But,  we  see  the 
deductions  of  criminal  anthropology  receiving  continued  confirma- 
tions, —  and  nothing  but  confirmations,  —  whenever  anthropo- 
metrical  data  are  checked  by  the  comparison  of  delinquents  with 
honest  people. 

Winckler  and  Berends  have  lately  applied  differential  cal- 
culus to  anthropometrical  data  taken  on  normal  persons  and 
delinquents  and  they  have  mathematically  demonstrated  that 
they  form  two  very  distinct  groups,  corresponding  to  an  actual 
and  profound  diversity  of  anthropological  type  (a  diversity 
such  as  occurs  among  individuals  belonging  to  quite  different 
races)  and  confirming  what  I  myself  have  shown;  namely,  that 
"in  spite  of  great  ethnical  diversities  of  the  different  regions  of 
Italy,  there  is  often  a  greater  difference  between  assassins  and 
normal  men  of  the  same  province,  than  between  the  normal 
individuals  of  different  and  distant  provinces."  Thus,  for  ex- 
ample, in  cranial  capacity,  in  frontal  diameter,  in  frontal  index, 
in  the  diameter  of  the  jaws  and  in  the  development  of  the  face, 
there  is  more  difference  between  the  assassins  of  the  provinces 
of  Naples,  Calabria,  and  Sicily  and  the  soldiers  of  the  same  prov- 
inces than  there  is  between  the  soldiers  of  the  southern  regions 
and  those  of  Lombardy  and  Venice.^ 

§  26.  Method  Employed  in  the  Study  of  Criminals ;  Inexactness  of 
Comparisons. 

The  other  objection  directed  to  the  method  of  criminal  an- 
thropology bears  on  the  comparison  between  delinquents  and 
normal  persons.  The  claim  is  made  that  it  is  inaccurate,  both  in 
the  numerical  difference  of  the  two  series  of  individuals  compared 
and  in  the  difference  between  them  in  personal  conditions.     As 

'  Winkler,  "Jets  over  criminele  anthropologie "  (Harlem,  1895);  Berends, 
"Eenige  Schedelmaten  van  Recruten,  Moordenaars  Epileptici,  en  Imbecillen" 
(Nimegue,  1886);  Ferri,  "  L'Omicidio,"  pp.  205,  206;  Lombroso,  "Uomo  delin- 
quente,"  5th  ed.  Ill,  633. 


56  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§26 

to  the  numerical  diflFerence,  it  does  not  exist  in  the  case  of  many 
anthropologists :  for,  if  Marro,  for  instance,  compared  five  hundred 
delinquents  with  one  hundred  normal  subjects,  I  can  advert  to 
my  studies  of  seven  hundred  delinquents,  seven  hundred  and 
eleven  soldiers,  and  three  hundred  insane  and,  moreover,  to  the 
total  figures  reached  by  Lombroso  where  there  is  almost  a  numer- 
ical equality  of  delinquents  and  insane  (about  27,000)  and  normal 
persons  (about  25,000).  In  order  to  justify  the  inertia  of  the 
International  Committee,  appointed  by  the  Congress  of  Paris, 
to  make  a  comparative  study  of  delinquents  and  normal  persons, 
Manouvrier  went  so  far  as  to  present  to  the  Brussels  Congress  a 
report  intended  to  show  by  syllogisms  the  impossibility  of  "the 
comparative  study  of  criminals  and  honest  people,^  —  a  study 
which,  the  contrary  notwithstanding,  is  practised  every  day  by 
criminal  anthropologists. 

More  serious,  however,  is  the  second  reproach  made  of  the 
comparison  of  criminals  with  honest  people  where  the  subjects 
belong  to  different  social  classes.  It  has,  indeed,  been  pointed 
out  that  in  order  to  get  two  less  heterogenous  series,  the  com- 
parison, should  be  made  of  individuals  belonging  to  the  same 
social  class.  This  defective  mode  of  comparison,  however,  is 
not  met  with  in  the  greater  part  of  anthropologico-criminal 
studies.  For  example,  Lombroso,  Ottolenghi,  Tarnowski,  and 
others  have  examined  honest  men  and  delinquents  belonging 
to  the  same  class  and  yet  have  obtained  equally  conclusive 
results.  The  same  may  be  said  of  my  studies  of  delinquents 
and  of  soldiers,  which  I  have  fully  explained  in  "L'Omicidio," 
after  I  had  made  them  by  comparing  subjects  from  the  same 
provinces  and  for  the  greater  part  belonging  to  the  same  classes, 
i.  e.,  workmen  and  peasants.  Further,  in  observing  soldiers  in 
comparison  with  delinquents  of  the  same  provinces,  we  have 
elements  of  comparison  of  a  better  fixed  value;  for,  in  soldiers 
we  have  the  real  normal  type  of  the  popular  classes;  that  is,  a 
contingent  that  excludes  pathological   elements. 

Moreover,  I  supplemented  these  comparisons  by  considering 
also  the  insane,  who  form  a  third  contingent  from  which  the 
normal  man  is  absolutely  excluded.  The  insane  afford  a  second 
term  of  comparison  that  is  diametrically  opposed  to  the  normal 
and  healthy  type  and  on  that  account  an  effective  means  for 
counterproof  in  the  comparative  study  of  criminals. 
1  A.  C.  A.  C.  (Brussels,  1893),  p.  171. 


§27]  FUNDAMENTAL  OBJECTIONS  TO  DATA  57 

§  27.  Scientific  Assumptions  of  Criminal  Antiiropology. 

In  view  of  the  interdependence  and  interweaving  of  natural 
phenomena,  criminal  anthropology  must  take,  as  a  foundation, 
the  more  general  and  more  positive  inductions  of  biological  and 
natural  sciences  which  embrace  phenomena  less  complex  and 
consequently  anterior  to  human  criminal  acts,  in  the  cosmic, 
physical,  chemical,  biological,  and  zoological  orders  as  well  as  in 
general  anthropology:  so,  likewise,  criminal  sociology  must  add 
other  inductions  of  a  more  complex  nature  supplied  by  general 
sociology  to  this  substructure  of  general  scientific  inductions. 
The  objections,  aimed  from  different  quarters,  at  the  scientific 
assumptions  of  criminal  anthropology,  could  therefore  directly 
interest  this  special  science  only  in  the  case  where  its  adepts 
should  borrow  but  a  few  particular  inductions  from  the  physi- 
cal and  biological  sciences.  When,  however,  in  the  name  of 
more  or  less  disguised  ancient  ideas  of  free  will,  —  which 
whether  avowed  or  dissimulated  are  at  the  bottom  of  all  the 
other  objections  of  the  spiritists  and  champions  of  classical 
criminal  law,  —  when  they  criticise  us  on  the  application  of  the 
experimental  method  to  the  moral  and  social  sciences,  on  the  law  of 
universal  and  biological  evolution,  on  physical,  psychological, 
and  social  determinism,  or  on  the  relativity  of  morals  and  law 
as  historical  products  of  social  evolution,  we  see  nothing  in  the 
controversy  but  an  actual  loss  of  time,  since  all  discussion  is 
useless  and  vain  when  the  adversaries  are  not  even  agreed  upon 
the  general  principles  of  science  and  philosophy.  Among  ad- 
versaries of  this  sort,  I  will  mention  De  Aramburu,  Brusa,  Proal, 
and  Pellizzari.  Quite  recently  one  of  the  declared  partisans  of 
natural  or  monistic  philosophy,  has  disputed  the  scientific  assump- 
tions of  anthropology  and  particularly  the  following  three  funda- 
mental points;  (a),  the  relation  between  the  physical  and  moral 
in  man;  (b),  the  genetic  relation  between  organs  and  functions; 
(c),  the  relation  between  the  brain,  the  intelligence,  and  morality.^ 
Colajanni  uses  more  than  ninety  pages  in  denying  relations  with- 
out which  it  is  simply  impossible  to  conceive  of  any  biological, 
psychological,  or  social  science.  It  is  a  negation  that  I  am  unable 
to  explain  otherwise  than  as  the  effect  of  a  masked  spiritualism 
such  as  I  have  met  with  in  other  critics,  who  call  themselves 

*  Colajanni,  "Sociologia  criminale"  (Catania,  1889),  pp.  74-162. 


58  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§28 

positivists  or  experimentalists  but  who  are  in  reality  mystics  and 
metaphysicians;    like  Tarde  for  instance. 

§  28.  Influence  of  Organic  Conditions  upon  Moral  Conduct. 

That  the  conditions  of  the  organism  influence  the  moral  con- 
duct of  individuals  has  been  demonstrated  by  a  myriad  of  clinical 
facts,  among  which  it  would  be  sufficient  to  recall  the  constant  and 
inevitable  variations  of  moral  character  produced  by  alcohol 
unless  we  should  wish  to  resort  to  other  instances,  such  as  the 
influence  of  certain  atmospheric  conditions  on  nervous  irritability 
and,  hence,  on  the  character  and  feelings  of  individuals.  One 
of  the  most  familiar  instances  of  this  kind  is  the  wind  of  the 
American  pampas  which  when  it  blows  in  a  certain  direction 
singularly  excites  the  inhabitants  of  these  wild  regions  and 
multiplies  quarrels  and  homicides  in  an  obvious  and  extraor- 
dinary way.  And  it  is  generally  admitted  that  certain  diets 
modify  both  the  physiological  state  and  the  intellectual  and 
moral  condition  of  man  and  other  animals.  I  wish  to  cite  here 
but  a  single  proof,  one  which  will  not  be  questioned,  since  it  is 
dictated  in  all  simplicity  by  the  living  reality  of  facts  and  with- 
out any  scientific  preoccupation  whatever.  Garibaldi,  speaking 
of  the  American  horsemen  who  never  spared  their  fallen  or 
wounded  enemies,  writes:  "The  constant  habit  of  a  purely  car- 
nivorous nourishment  and  the  habit  of  slaughtering  cattle  daily 
is  probably  the  cause  that  makes  them  so  ready  to  commit 
homicide."^  The  clinical  cases  of  mothers  who  are  tenderly  at- 
tached to  their  children  in  the  intervals  between  their  men- 
strual periods  and  who  torment  them  and  sometimes  put  them 
to  death  during  such  periods  is  still  another  proof.  Do  they 
not  suffer  anomalies,  perhaps  as  yet  imknown  to  the  biologist 
but  to  the  determining  influence  of  which  their  moral  state  is 
nevertheless  subject? 

Also,  what  should  be  said  of  the  changes  of  character  fol- 
lowing certain  injuries  to  the  head  and  of  certain  cases  of  moral 
cure,  for  example,  after  an  operation  on  the  skull  releasing  the 
brain  from  the  pathological  influence  of  an  osteoma  or  a  tumor, 
and  of  other  moral  cures,  such  as  where  a  woman  loses  her  evil 
instincts  after  the  removal  of  her  ovaries.'*  Without  putting 
into  the  crucible  of  experimental  observations,  all  of  the  corol- 
laries of  Colajanni,  so  prodigiously  imbued  with  animism,  I  will 
1  Garibaldi,  "Memorie"  (Florence,  1888),  p.  174. 
V 


§28]  FUNDAMENTAL  OBJECTIONS  TO  DATA  59 

say  with  respect  to  the  second  point  (genetic  relation  between 
organs  and  functions),  that  if  the  organ  influences  the  function, 
the  reverse  is  not  less  true.  A  man  is  a  good  runner  if  he  has 
strong  and  well-developed  lungs  and  conversely,  track  exercise 
favored  by  organic  conditions  increases  the  development  of  his 
lungs.  It  is  also  admissible,  but  not  in  an  absolute  way,  that 
medicine  may  draw  advantage  from  moral  influence  over  the 
physical,  by  suggestion  and  by  other  phenomena  which  are  of 
nervous  and  not  mental  origin.^  One  may  also  understand  (but 
with  benefit  of  inventory)  the  conclusion  of  Wundt  that  "the 
physical  is  not  the  cause  but  much  rather  the  effect  of  psychic 
evolution,"  not  only  because  this  conclusion  is  not  absolute  and 
indicates  only  a  predominance,  that  I  persist  in  considering  base- 
less, but  also  because  it  may  be  taken  in  the  sense  that  the  exercise 
of  the  function  in  different  surroundings,  by  a  return  effect  influ- 
ences the  development  and  even  the  transformation  of  the  organ; 
and,  finally,  because  Wundt  himself  weakens  the  dictum  in  the 
last  paragraph  on  "the  psycho-physical  point  of  view,"  —  a  para- 
graph which  begins  as  follows:  "The  psycho-physical  examination 
should  rest  upon  this  principle  universally  established  by  experi- 
ence, 'nothing  comes  into  our  consciousness  without  a  funda- 
mental sensatory  basis  in  determinate  physical  processes.' "  ^  But 
to  assert  absolutely  and  without  reservation  as  does  Colajanni, 
that  "the  function  engenders  the  organ,"  is  in  my  opinion  a  ra- 
tional absurdity  as  well  as  an  error  in  fact,  for  it  is  equivalent 
to  saying  that  a  function  can  exist  before  the  corresponding  organ 
which  it  must  create.  This  is  even  more  extreme  than  the  old 
spiritualism,  which  at  least  to  my  knowledge  never  went  so  far 
as  to  claim  that  the  soul  creates  the  body.  As  to  the  third  point 
{relation  between  the  brain,  intelligence,  and  morality),  the  conclu- 
sion from  the  biological  sciences  which  criminal  anthropology 
admits  and  appropriates  is  this:  The  brain  is  indisputably  the 
organ  of  thought;  but  cerebral  volume,  although  the  most  im- 
portant element,  is  not  the  sole  and  exclusive  determinant  of  the 
psychic  development  of  the  individual.' 

^  Tuke,  "Influence  of  the  Mind  on  the  Body  in  Health  and  Disease"  (Lon- 
don, 1877);  Bemheim,  "Neue  Studien  iiber  Hypnotism,  Suggestion  und  Psycho- 
therapie"  (Leipsic,  1892);  Ottolenghi,  "La  suggestione  e  la  facolta  psichiche 
occulte"  (Turin,  Bocca,  1900),  p.  712. 

*  Wundt,  "Grundziige  der  Physiologie  und  Psychologie, "  3d.  edition  (1884). 

'  This  answers  the  repeated  assertions  of  the  anti-positivists  on  the  relations 
between  the  skull,  the  brain,  and  thought:  See  on  this  subject  Simms,  "Weight  of 


60  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  29 

§  29.  Sources  of  Objections  to  Anthropological  Data. 
The  objections  to  the  assumptions  drawn  by  criminal  an- 
thropology from  the  modern  biological  sciences  are  evidently 
allied  with  the  neo- vitalism  which  has  shown  itself  here  and  there 
in  Germany  and  with  the  neo-mysticism  which  has  led  to  the 
declaration  that  science  is  bankrupt,  —  movements  born  of  the 
politico-social  reaction  against  the  rise  of  the  modern  proletariat, 
and  which  I  have  heretofore  combated.^  However,  these  ob- 
jections also  have  a  more  proximate  determining  cause  in  the 
preconceived  idea  of  our  adversaries,  who  see  in  criminality  only 
the  effect  of  social  factors  and  who  on  that  account  seek  by  force 
of  syllogisms  to  eliminate  the  biological  factors  at  any  cost.  Even 
assuming  that  all  modern  biology  were  a  tissue  of  errors,  I  yet 
have  an  argument  of  fact  which  I  shall  ceaselessly  offer  to  all  the 
opponents  of  criminal  anthropology  and  which  itself  is  an  unan- 
swerable reply  to  all  the  closet  criticisms.  It  is  this  fact:  In  the 
prisons  and  in  the  insane  asylums,  confining  ourselves  to  them, 
we  know  how  to  distinguish  the  born-murderer  from  the  rest  of 
criminals  by  bodily  characteristics,  especially  in  clean-cut  cases, 
in  accordance  with  data  which  I  have  given  and  which  we  have 
obtained  not  by  abstract  reasoning,  but  by  studying  one  thousand 
seven  himdred  and  eleven  individuals  in  one  year,  comprising 
sound,  insane,  and  criminal.  To  me,  initiated  as  I  am  in  the 
positive  method,  this  fact  of  itself  has  more  value  than  a  hundred 
volumes  of  our  adversaries'  reasonings;  it  is  enough  to  prove  the 
truth  of  criminal  anthropology  and  the  actuality  of  the  criminal 
type,  notwithstanding  errors  of  detail,  which  are  indeed  here 
present  as  in  all  other  natural  sciences,  and  notwithstanding  all 
the  controversial  artifices  of  our  opponents.^    It  is  true  that  the 

the  Brain  and  Intellectual  Capacity,"  in  "Appleton's  Popular  Science"  (Decem- 
ber, 1898). 

^  Ferri,  "La  scienza  e  la  vita  nella  XIXe  secolo,"  Inaugural  address  at  the 
New  University  of  Brussels,  in  the  "Devenir  social"  (November,  1897). 

*  I  shall  always  remember  how,  as  I  studied  seven  hundred  soldiers  man  by 
man  in  comparison  with  seven  himdred  delinquents  one  day,  there  came  before 
me  and  the  doctor  who  was  present  at  these  examinations,  a  soldier  obviously  of 
the  type  of  the  bom-criminal,  with  enormous  jaws,  extremely  developed  temples, 
a  pale  and  earthy  skin,  and  a  cold  and  ferocious  physiognomy.  Well  knowing 
that  persons  who  had  been  convicted  of  serious  offenses  were  not  admitted  to  the 
army,  yet  I  hazarded  the  remark  to  the  major  that  this  man  must  be  a  murderer. 
In  reply  to  indirect  questioning,  the  soldier  told  me  a  few  minutes  later  that  he  had 
served  fifteen  years  in  prison  for  a  murder  committed  in  his  childhood.  The  major 
looked  at  me  in  astonishment  and  I  said  to  myself:  "  I  wish  that  the  critics  who  have 

V 


§30]  FUNDAMENTAL  OBJECTIONS  TO  DATA  61 

adversaries  of  criminal  anthropology  after  visiting  prisons  and 
insane  asylums  assert  that  they  have  not  found  specific  character- 
istics among  criminals;  but  that  proves  only  that  they  have  not 
known  how  to  look  for  them;  since  being  jurists  rather  than 
anthropologists  they  have  neither  scientific  knowledge  nor  ex- 
perience. Yet,  to  cite  a  striking  example.  Professor  Canonico, 
doubtless  a  stranger  to  anthropological  researches  and  a  con- 
vinced partisan  of  the  classical  school,  but  free  from  controversial 
prejudices,  could  write  the  following  lines  in  relating  his  rapid 
visit  to  a  few  prisons  in  Europe:  "I  am  not  a  fatalist;  but  when 
I  saw  a  number  of  habitual  criminals  of  mature  age  assembled  in 
the  same  room  of  the  Bruchsaal,  I  said  to  myself:  'Do  what  one 
may  these  men  will  always  be  rogues.'  One  saw  clearly  on  their 
faces  the  impress  of  a  defect  of  balance  in  their  moral  faculties."  ^ 

§  30.   Qualitative  and  Quantitative  Disagreements  in  the  Data  of  Criminal 

Anthropology. 

These  form  an  objection  that  has  received  the  undeserved 
honor  of  repetition  in  every  tone  and  with  a  more  or  less  accurate 
prodigality  of  detail.  To  it,  on  that  account,  a  few  words  must 
be  devoted,  although  for  some  time  it  has  given  way  before  the 
increasingly  methodical  researches  of  criminal  anthropology.  In 
the  first  place,  in  every  natural  science  and  especially  in  the  bio- 
logical   sciences  where   the  complexity  of    phenomena    studied 

never  studied  a  living  criminal  might  be  here  in  hiding  to  make  their  reasonings 
and  say  that  criminal  anthropology  has  no  foundation."  In  like  manner,  in  the 
Tivoli  House  of  Correction,  in  1889,  although  the  director  had  told  us  that  there 
were  there  only  little  good-for-nothings  and  no  juveniles  sentenced  for  serious 
crimes,  I  pointed  out  to  my  students,  among  whom  was  Sighele,  a  boy  who  had  the 
enormously  developed  canine  teeth  and  other  stigmata  of  degeneracy,  and  I  de- 
clared him  a  bom-homicide.  After  questioning  him  we  learned  that  he  was  a  tran- 
sient inmate,  that  he  had  been  sent  to  the  "Generala"  of  Turin  to  imdergo  a 
sentence  because  at  the  age  of  nine  years,  he  had  killed  his  little  brother  by  crushing 
his  head  in  with  a  stone. 

In  Paris,  at  the  Asylum  of  St.  Anne,  during  the  anthropologico-criminal  Con- 
gress and  in  the  presence  of  Tarde,  Lacassagne,  and  Benedikt,  I  distinguished  by 
the  contour  of  their  heads  the  homicides,  from  the  thieves  among  the  de- 
generates that  Magnan  showed  us. 

In  the  penitentiary  of  Civitavecchia  as  we  were  about  to  leave  a  dormitory, 
it  was  said  that  there  was  no  characteristic  type  there  to  show  the  students,  when 
I  designated  a  convict  of  the  brigand-assassin  type.  Upon  calling  him  over  to  us, 
he  told  us  somewhat  reluctantly  that  he  was  "the  chief  of  the  Carbone  brigands." 

Dello  Sbarba,  "Al  penitenziario  di  Civitavecchia,"  in  the  "Scuola  positiva" 
(May.  1896),  p.  309. 

*  Canonico,  "Revista  carceraria"  (1885),  p.  91. 


e2  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  31 

increase  in  an  extraordinary  way,  we  can  find  series  after  series 
of  qualitative  and  quantitative  contradictions.  Physiology  and 
even  anatomy,  surely  are  positive  and  fertile  sciences;  and  yet 
how  many  differences  there  are  between  observers  on  each  point, 
so  to  speak,  of  their  observations  of  fact,  from  the  obscure  prob- 
lems of  cerebral  localization  down  to  the  modest  question  of  the 
number  of  bones  composing  the  human  skeleton.  Why  should 
this  disagreement  in  partial  results  therefore  be  the  death  sentence 
of  criminal  anthropology  alone,  which  is  no  more  and  no  less  guilty 
than  every  other  biological  science  and  which  is  only  in  its  be- 
ginning? It  is  precisely  in  this,  as  I  have  said  elsewhere,  that  the 
customary  lack  of  experimental  sense  among  closet  critics  is 
shown.  They  argue  from  data  supplied  by  facts  without  ever 
personally  having  verified  a  single  fact.  It  can  easily  be  under- 
stood how  the  good  logician  wishes  to  find  the  figures  furnished 
by  criminal  anthropology  all  in  coordination  and  in  agreement, 
well  established  and  symmetrical;  such  indeed  are  the  indispen- 
sable conditions  of  every  good  "a  priori"  system.  But,  on  the 
other  hand,  one  cannot  expect  that  the  reality  of  facts  so  multi- 
farious and  complex,  should  show  itself  in  each  of  the  series  of 
delinquents  observed  and  in  the  different  series  compared,  in 
regular  formulation,  in  so  many  definite  figures  agreeing  mathe- 
matically. Thus  what  is  a  defect  in  the  eyes  of  the  syllogistic 
critic  becomes  evidence  to  the  naturalist  that  these  data  are  not 
arranged  according  to  preconceptions  of  the  anthropologist  but 
are  precisely  accurate  reproductions  of  the  multiple  forms  of 
nature,  in  their  diversity.  It  is  on  this  account  that  we  have 
always  asserted  the  necessity  of  avoiding  unilateral  views  in  the 
study  of  the  criminal  and  crime  and  of  understanding  all  of  the 
most  diversified  manifestations,  personal  and  real,  organic  and 
psychic,  physical  and  social,  which  (unless  artfully  manipulated) 
by  their  nature  cannot  be  formulated  into  figures  which  are 
identical  and  in  perfect  agreement  with  a  given  percentage. 

§  31.  Disagreement  in  the  Data  of  Anthropology  More  Apparent 
Than  Real. 

It  often  happens  that  the  differences  between  the  results  of 
two  observers  are  only  apparent  and  may  be  rescinded  by  experi- 
ment. In  this  connection  I  should  mention  two  defects  in  the 
method  pursued  by  many  criminal  anthropologists,  defects  which 
have  not  been  objected  to  by  our  critics,  but  which  lead  to  dis- 
V 


§31]  FUNDAMENTAL  OBJECTIONS  TO  DATA  63 

cordances  and  contradictions  which  are  not  true  to  fact.^  One 
of  these  defects  is  the  measuring  of  skulls  in  order  to  determine 
the  cranial  capacity  of  criminals  without  knowing  anything  of 
the  stature  and  respective  ages  of  the  subjects,  whereas  there  is 
a  settled  connection  between  the  different  anthropological  charac- 
teristics, the  capacity  of  the  skull,  for  instance,  being  definitely 
related  to  the  age  and  especially  to  the  stature.  Again,  in  like 
manner  the  breadth  of  the  jaw  and  of  the  forehead  must  be  con- 
sidered with  the  larger  or  smaller  formation  of  the  skull,  i.e.,  with 
the  cephalic  index,  —  and  so  on  as  I  have  shown  in  my  study  on 
homicide.  Hence  it  is  that  the  discordance  is  not  effective  and 
real  but  may  depend  on  differences  of  stature  and  age  for  the  differ- 
ent series  of  skulls  studied.  The  second  defect,  of  which  Marro, 
among  others,  is  guilty,  and  which  leads  to  apparent  discrepancies, 
is  the  study  of  criminals  regardless  of  whether  one  or  another  of 
the  fundamental  types  predominates  in  the  series  studied;  that  is, 
the  criminal-born  type  with  predominance  of  the  biological  fac- 
tors or  the  type  of  the  occasional  delinquent  with  a  contrary 
predominance  of  the  social  factors.  It  is,  indeed,  certain  that 
if  attention  be  paid  to  this  and  if  one  studies  only  a  series  of  born- 
criminals,  whatever  be  the  crimes  of  which  they  have  been  con- 
victed, the  biological  anomalies  will  be  much  more  frequent  than 
if  a  series  of  occasional  delinquents  be  studied.  So  true  is  this, 
that  in  reality  the  legal  and  objective  classification,  such,  for 
example,  as  Marro  establishes  for  the  different  categories  of  sub- 
jects examined  by  him  according  to  the  quality  of  their  crime,  is 
not  by  any  means  the  best;  but  it  is  much  more  important  that 
criminal  anthropologists,  in  accordance  with  subjective  and 
psychological  criteria  and  even  in  accordance  with  the  data  of 
relapsed  criminals,  should  distinguish  the  basic  differences  between 
delinquents  in  whom  a  congenital  tendency  prevails  and  those 
whom  the  impulsion  of  surroundings  has  controlled.  Finally, 
there  are  forceful  instances  which  further  show  how  these  dis- 
crepancies disappear,  especially  when  the  serial  method  is  applied. 
This  is  exactly  what  occurred  in  reference  to  cranial  capacity, 
which,  as  now  fixed,  shows  in  delinquents  as  compared  with 
normal  men  (condition  of  age,  stature,  province,  etc.,  being 
equal)  an  unusual  frequency  of  heads  either  too  large  or  too 
small. 

^  On  the  method  in  criminal  anthropological  researches  see  Ferri,  "L'Omicidio," 
pp.  100  et  seq. 


64k  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  32 


§  32.  Miscitation  as  the  Basis  of  Criticism  of  the  Use  of  Anthropological 

Data. 

The  most  typical  instance,  however,  of  biased  and  superficial 
criticism  directed  at  criminal  anthropology  from  this  standpoint 
is  to  be  found  in  certain  particular  objections  which  proceed 
solely  from  the  habit  of  neglecting  the  other  elements  which 
concur  in  the  determination  of  criminal  characteristics.  Tarde, 
in  formulating  one  of  these  objections,  —  afterwards  repeated 
to  excess  and  without  reflection  by  other  critics  as  if  to  prove  to 
Tarde  the  truth  of  his  observations  on  the  contagiousness  of  imi- 
tation in  social  life,  —  said:  "Women  present  some  striking 
resemblances  to  the  born  criminal,  but  this  does  not  prevent  them 
from  being  impelled  to  crime  only  one  fourth  as  frequently  as  men; 
and  I  might  add  that  they  are  four  times  more  often  impelled 
towards  good.  They  are  more  prognathic  than  men  and  yet 
(Topinard)  their  skulls  are  smaller  and  their  brain  less  heavy, 
even  with  equal  stature;  their  cerebral  forms  have  something  of 
the  infantile  and  embryonic;  they  are  less  adroit,  more  often 
left-handed  or  ambidexterous;  their  feet  are,  if  one  may  say  so, 
flatter  and  less  arched;  finally,  they  have  less  muscular  strength 
and  are  as  completely  devoid  of  beard  as  they  are  richly  endowed 
with  hair.  Now  these  are  so  many  characteristics  of  the  criminal. 
Moreover,  they  have  also  improvidence  and  vanity,  two  traits 
that  Ferri  rightly  indicates  as  dominant  in  criminals;  again,  there 
is  the  same  sterility  of  invention;  the  same  tendency  to  imitation; 
the  same  weak  and  limited  tenacity  of  will.  But,  on  the  other 
hand,  woman  is  eminently  good  and  affectionate  and  this  single 
difference  suffices  to  counterbalance  all  of  the  preceding  analogies. 
Moreover,  she  is  attached  to  the  traditions  of  her  family,  her  re- 
ligion, and  her  national  customs  and  she  defers  to  public  opinion. 
In  this  she  is  also  widely  differentiated  from  the  criminal,  in  spite 
of  some  superstitions  which  often  persist  in  him;  but  in  this  she 
approximates  the  savage,  the  good  savage  to  whom  she  has  a  much 
greater  resemblance  than  to  the  criminal."  ^  Colajanni  also, 
after  reproducing  this  objection  with  much  detail,  thus  concludes: 
"Let  us  admit  it:  the  sexual  contradiction  is  the  strangest  of  all 
and  fittingly  supplements  the  series  of  contradictions  in  criminal 
anthropology."  ^    Sergi  has  made  fine  and  caustic  replies  to  all 

*  Tarde,  "La  criminality  comparee"  (Paris,  1886),  p.  46. 

*  Colajanni,  "Sociologia  criminale,"  1,  299. 


§32]  FUNDAMENTAL  OBJECTIONS  TO  DATA  65 

these  attacks,  in  not  only  disputing  the  scientific  accuracy  of 
Tarde's  assertions  of  the  characteristic  peculiarities  of  women  and 
of  the  fact  that  the  connection  is  found  in  savages,  but  also  in 
calling  attention  to  the  fact  that  the  objection  has  a  slight  basic 
defect  in  that  it  neglects  the  difference  of  sex  as  an  element  of 
comparison.  His  conclusion  is  as  follows:  "Woman  is  not  a 
facsimile  of  the  savage  or  of  prehistoric  man,  but  like  her  an- 
cestors she  has  sexual  characteristics  peculiarly  her  own  and  she 
possesses,  by  heredity,  the  tendencies  which  are  inherent  in  those 
characteristics.  These  are,  as  Darwin  would  say,  secondary 
characteristics  of  sexuality  which  are  common  to  savage  women 
and  civilized  women  and  which  Tarde  mistakes  for  atavistic 
traits."  ^  Nor  is  this  all:  it  might  be  observed  that  "if  woman 
in  society  supplies  only  an  insignificant  quota  in  the  figures  of 
crime,  she  does  indeed  fully  manifest  in  prostitution  the  degen- 
eracy peculiar  to  her  sex";  but  here  again,  as  always,  we  should 
repeat  that  crime  is  not  the  effect  of  biological  characteristics 
alone  but  is  the  resultant  of  these  characteristics  in  cooperation 
with  physical  and  social  factors.  Hence,  while  the  profoundly 
different  medium  in  which  woman  lives  counterbalances  the  im- 
pulsion of  biological  factors  in  her,  yet  this  does  not  contradict 
at  all  criminal  anthropological  inductions  on  the  natural  genesis 
of  crime;  for  this  genesis,  let  us  once  more  repeat,  is  not  so  one- 
sided, so  clean-cut,  and  so  exclusively  organic  as  our  critics,  for 
the  convenience  of  controversy,  persist  in  supposing.  Colajanni 
makes  us  another  objection  of  the  same  kind  when  he  asserts 
that  "contemporaneous  man  does  not  differ  from  prehistoric 
man  in  fundamental  morphological  characteristics,  within  the 
limits  of  the  same  race;  whence  the  legitimate  inference  that 
physical  evolution  does  not  move  in  parallel  lines  with  physico- 
moral  evolution."  ^  Here  again,  without  going  into  the  details 
of  particular  facts  which  might  be  used  against  him  and  which 
differ  from  the  facts  collected  by  him,  the  rejoinder  must  be 
made  that  the  objection  is  baseless  because  one-sided.  It  is 
well  known  that  organic  racial  traits  are  very  stable:  Phoenician 
skulls  excavated  in  Apulia  show  the  same  general  characteristics 
as  those  of  the  modern  inhabitants  of  that  region;  and  there  are 
a  thousand  instances  of  the  same  kind.  But  are  not  the  psychic 
traits  of  the  race  just  as  stable,  especially  those  that  are  funda- 

^  Sergi,  "he  degenerazioni  umane"  (Milan,  1889),  p.  137. 
*  Colajanni,  "Sociologia  criminale,"  1,  323. 


66  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§32 

mental?  Frenchmen  of  to-day  answer  the  psychological  descrip- 
tion that  Julius  Caesar  gave  of  the  Gauls,  and  the  Germans 
answer  the  description  that  Tacitus  gave  of  their  ancestors;  ^  and 
so  in  our  own  domain  I  have  largely  explained  the  oasis  of  lesser 
criminality  in  eastern  Sicily  as  compared  with  western  Sicily  and 
in  Apulia  in  comparison  with  neighboring  regions,  by  the  per- 
manence of  the  ethnic  traits  both  organic  and  psychic  of  the 
Greek  elements  that  peopled  those  countries.^  There  is  therefore 
no  lack  of  harmony  between  organic  evolution  and  psychic  evolu- 
tion :  further,  by  organic  evolution  one  should  not,  like  Colajanni, 
understand  exclusively  the  external  morphological  characteristics 
but  also  those  which  are  histological  and  physiological.  More- 
over, how  can  one  by  simple  reasoning  reach  "a  legitimate  infer- 
ence" when  we  know  that  the  most  important  biological  elements 
are  subject  to  the  slightest  variations,  but  that  vice  versa  these 
slight  variations  produce  much  greater  effects  than  much  more 
considerable  variations  of  the  other  elements.  That  the  legs  of 
one  man  should  be  twenty  centimeters  longer  than  those  of  an- 
other has  very  little  influence  on  the  general  and  psychic  develop- 
ment of  either.  But  when  one  man  has  as  little  as  one  cubic 
centimeter  more  brain  than  another  man,  other  things  being 
equal,  there  is  a  very  considerable  and  quite  visible  influence, 
particularly  on  the  psychic  and  social  state.  Again,  when  an 
hypothesis  such  as  that  of  Darwin  and  Spencer  explains  nine 
hundred  and  ninety  facts  out  of  a  thousand,  because  the  ten 
facts  are  insuflSciently  proved,  it  is  not  permissible  to  resort  to 
"the  legitimate  inference"  that  therefore  a  single  fact  is  worth 
more  than  one  hundred  theories,  although  drawn  from  other 
facts.  Before  denying  the  hypothesis  there  should  be  considered 
whether  these  ten  facts  do  not  correct  the  hypothesis,  since  it 
often  happens  that  they  are  in  disagreement  only  with  the  rigid 
and  incomplete  interpretation  which  the  critics  are  pleased  to  give 
to  these  hypotheses.  In  illustration  I  may  cite  another  fact 
which  I  have  observed  in  criminals  and  which  is  so  essentially 
involved  with  the  laws  of  evolution  that  I  cannot  omit  mentioning 
it.'  It  is  established  that,  from  mammals  to  man  and  among 
the  human  species  from  the  inferior  races  to  the  superior,  there 
is  a  correlative  development  of  the  skull  and  face  (from  the  eye- 

1  FouUlie,  "La  psychologic  du  pcuplc  francais"  (Paris,  Alcan,  1898). 

«  Ferri,  "  L'Omicidio, "  pp.  263,  264. 

•  See   Ferri,  "L'Omicidio,"  which  deals  with  facts  of  this  kind. 


§32]  FUNDAMENTAL  OBJECTIONS  TO  DATA  67 

brows  to  the  chin)  by  virtue  of  which,  in  the  make-up  of  the  head, 
the  face  decreases  more  and  more  in  proportion  to  the  size  of  the 
skull.  It  suffices  to  glance  at  the  head  of  a  horse  and  the  head  of 
a  man  to  note  that  the  face  of  the  horse  occupies  two  thirds, 
leaving  only  one  third  for  the  cranial  ovoid,  while  in  man  there  is 
about  the  same  distance  from  the  eyebrows  to  the  top  of  the 
head  as  from  the  chin  to  the  eyebrows.  In  savages,  save  for  in- 
evitable exceptions,  it  is  well  known  that  the  development  of  the 
face  is  enormous  in  comparison  with  that  of  the  skull.  There  is 
this  same  development  in  microcephaUc  idiots  who  incontestably 
represent  atavistic  return  to  inferior  species.^  Among  civilized 
races  and  among  the  more  intelligent  and  moral  individuals  of 
these  races,  the  face  becomes  smaller  compared  with  the  skull 
and,  moreover,  the  size  of  the  jaws  diminishes.^  Whatever  the 
significance  of  this  fact  may  be,  I  have  found  an  enormous  devel- 
opment of  the  face  relatively  to  the  skull  in  criminals  when  com- 
pared with  normal  men.'  Now,  in  the  face  of  so  eloquent  a  fact, 
isolated  though  it  be,  of  what  value  are  academic  syllogisms  or 
litanies  of  contradictions  of  detail  in  a  particular  anthropological 
result.'*  Again,  if  Colajanni  finally  accepted  the  most  striking 
hypothesis  of  criminal  anthropology,  namely,  that  crime  is,  as 
he  says,  "a  phenomenon  of  psychic  atavism,"  how  can  one  fail  to 
see  that  organic  atavism  corresponds  to  psychic  atavism?  Fi- 
nally, above  all  the  partial  disagreements  on  each  of  the  basic  facts 
of  criminal  anthropology,  we  see  the  predominance  of  a  constant 
and  indisputable  fact:  namely,  that  all  scientific  observers  of 
criminals  compared  with  normal  men,  —  even  those  (Heger, 
Bordier,  Manouvrier,  Fere,  or  Monti)  who  reject  this  or  that  con- 
clusion of  the  Italian  positive  school,  —  have  always  found  in 
criminals  undeniable  characteristics  of  even  organic  inferiority. 
We  shall  see  presently  the  interpretation  that  has  been  given  and 
that  can  be  given  to  these  anomalies;  but  from  now  on,  this 
ultimate  and  conclusive  agreement  suffices  to  take  away  any 
appearance  of  scientific  value  in  the  specious  objection  that  there 
are  contradictions  of  detail  in  the  various  researches  of  criminal 
anthropology. 

^  One  needs  only  to  have  seen  one,  as  I  did  in  Turin,  to  give  up  every  con- 
trary argument. 

*  See  Ferri,  "L'Omicidio,"  p.  180,  where  this  fact  is  explained  in  order 
to  destroy  the  doubts  of  Spencer  as  to  its  biological  significance. 

'  See  Ferri,  "L'Omicidio,"  illustrations  7  and  8. 


68  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  33 

§  88.  The  Presence  of  Criminal  Traits  in  the  Honest  and  in  the 
Non-Criminal  Insane. 

Another  very  widespread  objection  to  criminal  anthropology  is 
that  anomalies,  particularly  organic,  are  not  found  exclusively 
among  criminals;  that  they  occur  among  honest  folk,  among  the 
non-criminal  insane,  and  among  degenerates  generally.  This  criti- 
cism is  more  serious  than  all  of  the  preceding  objections  because  it 
is  more  positive.  Moreover,  it  is  related  to  the  last  two  objections, 
to  be  considered  later,  one  directed  to  the  criminal  type  and  the 
other  to  the  nature  of  criminality.  The  answer  which  I  shall 
make  to  it  should  be  supplemented  by  the  answer  I  shall  make 
to  the  other  two  objections.  First  of  all,  let  me  say  that  as  a 
general  rule  all  sciences  which  study  life  phenomena  and  especially 
those  which  have  man  as  their  object,  whether  they  are  physio- 
logical or  psychic,  are  now  characterized  by  the  relative  in- 
accuracies inseparable  from  the  beginnings  of  every  science. 
Stuart  Mill,  among  others,  has  fully  demonstrated  that  the  im- 
mense variety  of  elements  concurring  to  constitute  a  physiological 
or  psychic  phenomenon  is  the  sole  cause  that  makes  it  impossible 
under  present  conditions  to  calculate  them  with  mathematical 
and  quantitative  exactness.^  Even  the  psychological  and  social 
sciences  will  in  time  reach  a  quantitative  perfection.  Of  this 
we  already  see  the  first  examples.  In  psychology  it  suflSces  to 
mention  the  psycho-physical  studies  of  Fechner,  Weber,  Delboeuf, 
Mosso,  and  others,  yet  they  should  not  be  taken  at  the  full  value 
first  given  them.^  In  sociology,  even  aside  from  the  tentatives 
of  Giuseppe  Ferrari  on  "mathematics  in  history,"  we  have  ad- 
vanced through  the  labors  of  Quetelet,  Guerry,  Fayet,  Wagner, 
Drobisch,  Oettingen,  Mayr,  Messedaglia,  Lombroso,  Morselli, 
Tammeo,  Lacassagne,  Ferri,  and  others,  to  a  more  general  use 
of  the  statistical  method  applied  to  the  study  of  moral  facts  in 
society,  as  well  as  the  calculation  of  probabilities.  It  is  not  neces- 
sary to  mention  the  works  of  such  authors  as  Whernell,  Cournot, 
Walras,  and  Jevons  who  have  applied  mathematics  to  political 
economy.  The  fact  that  all  this  scientific  movement  has  not  yet 
reached  a  high  degree  of  certainty  does  not  detract  from  its 
positive  value  and  the  assurance  of  greater  progress. 

*  Mill,  "A  System  of  Logic,  Ratiocinative  and  Liductive"  (London,  1843), 
Vol.  II,  Lib.  VI,  cap.  3. 

*  Fechner,  "Elemente  der  Psychophysik"  (Leipzig,  1860),  "In  Sachen  der 
Psychophysik"  (1887);    "Revision  der  Hauptpunkte  der  Psychophysik"  (Leip- 

V 


§34-36]    FUNDAMENTAL  OBJECTIONS  TO  DATA  69 

§  34.  Accumulation  of  Criminal  Traits  Necessary  to  Mark  the  Criminal. 

But  let  us  see  what  force  there  really  is  to  the  first  part  of  this 
objection. 

Generally  there  is  to  be  found  in  the  honest  man  a  single  one 
or  a  very  few  of  those  characteristics  which  are  found  together 
in  every  criminal,  or  rather  in  each  of  the  criminals  who  form  a 
special  class,  by  reason  of  inborn  and  particularly  serious  anom- 
alies, in  the  mass  of  criminals.  Anthropologists  unanimously 
admit  that  the  important  thing  in  the  significance  of  the  anom- 
alies observed  in  criminals,  as  in  the  insane,  is  the  accumulation 
in  great  or  less  degree  of  these  anomalies  in  the  same  individual.^ 
It  should  be  noted  that  laymen  often  attach  an  undeserved  im- 
portance to  certain  characteristics,  simply  because  they  are  the 
most  obvious.  It  is  not  unusual  for  one  to  think  that  he  has  found 
the  criminal  type  in  a  man  simply  because  of  the  bloodshot  eyes, 
deformed  mouth,  uncouth  beard,  etc.,  whereas  these  peculiarities 
have  no  significance  to  the  anthropologist. 

§  35.   Counterbalancing  of  Criminal  by  Other  Traits. 
When  some  of  the  characteristics  observable  in  criminals  are 
found  in  an  honest  man,  very  often  the  expression  of  the  physiog- 
nomy or  the  other  anthropological  traits  immediately  rectify  an 
erroneous  judgment  based  on  first  appearances. 

§  36.  Variable  Predominances  of  Parents  in  Offspring. 

When  these  other  corrective  craniological  or  physiognomic 
elements  are  absent,  it  should  be  remembered  that  one  of  the 
laws  of  heredity,  both  organic  and  psychic,  is  the  variable  pre- 
dominance of  each  of  the  two  parents  in  the  transmission  of  their 
traits  to  their  offspring.  It  may,  indeed,  happen  that  one  of  the 
parents  has  transmitted  the  abnormal  exterior  forms  while  the 

zig,  1883);  Delboeuf,  "Recherches  theoriques  et  exp6rimentales  sur  la  mesure  des 
sensations"  (Brussels,  1873);  G.  E.  Muller,  "Zur  Grundlegung  der  Psychophysik: 
critische  Beitrage"  (Berlin,  1878);  Mosso,  "La  circolazione  del  sangue  nel  cervello 
dell'uomo,  ricerche  sfigmografiche"  (Rome,  1880);  Seppilli,  "Le  basi  fisiche  delle 
funzioni  mentali,"  in  the  R.  F.  S.,  II,  1.  For  the  great  contemporary  movement 
of  employing  measuring  processes  in  the  study  of  experimental  psychology,  see 
Binet,  "L'ann^e  psychologique "  (Paris,  1894  et  seq.),  with  important  original 
monographs  and  a  very  ample  bibliography. 

'  Mingazzini,  "  II  cervello  in  relazione  ai  fenomeni  psichici "  (Turin,  1895), 
p.  197.  As  to  abnormal  characteristics  found  in  honest  men,  see  Lombroso, 
"Uomo  delinquente, "  I,  103. 


70  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§37,38 

other  has  transmitted  the  normal  nervous  (and  hence,  psychic) 
constitution.  This  is  a  fact  scientifically  determined,  notwith- 
standing the  darkness  in  which  these  studies  are  buried.*  There 
are,  however,  unique  and  rare  cases,  while  in  the  others  the  ex- 
ception is  only  apparent  for  reasons  which  will  now  be  given. 

§  37.  Criminal  Traits  So  Called  Do  not  Necessarily  Result  in  Crime. 

One  should  not  attribute  to  anthropological  studies,  as  do 
laymen,  the  pretensions  of  the  old  phrenology,  which,  like  part  of 
Gall's  intuitions  on  the  relation  between  various  cerebral  organs 
and  psychic  activities,  reached  the  exaggerated  conclusion  which 
is  all  that  laymen  have  retained  of  them,  while  science,  on  the 
contrary,  has  condemned  them.*  The  presence  of  such  and  such 
anomalies  in  criminals,  does  not  mean  that  these  anomalies  (unless 
they  constitute  the  criminal  type  in  a  striking  manner)  are  abso- 
lutely and  exclusively  criminal  symptoms.  These  are  anomaUes, 
the  reaction  of  which  may  manifest  itself  in  the  life  of  the  individ- 
ual not  only  by  crime,  but  by  insanity,  suicide,  prostitution,  or 
simply  by  an  eccentric  character  or  an  immorality  which  falls 
short  of  those  extreme  degrees.  Crime  in  man  is  not  the  exclusive 
effect  of  mere  biological  conditions:  exterior  circumstances,  either 
physical  or  social,  are  needed  to  transform  them  into  criminal 
activity. 

§  38.  Influence  of  Circtmistances  in  Restraining  the  Criminal. 

It  should  be  remembered  that  a  man  may  be  innocent  according 
to  the  penal  code,  having  never  committed  a  robbery,  a  murder, 
or  a  criminal  assault,  without,  on  that  account,  being  normal.  In 
the  higher  classes,  especially,  criminal  instincts  may  be  smoth- 
ered by  environment  (wealth,  power,  or  the  greater  influence  of 
public  opinion).  This  is  why  there  is  a  face  which  is,  as  we  shall 
see,  the  inverse  of  the  face  of  the  occasional  criminal :  I  mean  the 
face  of  the  man  who  is  criminal-born  and  is  yet  preserved  from 

1  Ribot,  "L'h6redit6  psychologique,"  2d  ed.  (Paris,  1882),  pp.  181,  182,  203, 
396;  Spencer,  "Essays";  Lucas,  "Traite  philosophique  et  physiologique  de  I'h^- 
r6dit6  naturelle"  (Paris,  1847-50),  I,  pp.  194,  219;  Sergi,  "Le  degenerazioni 
umane,"  p.  27. 

*  Lombroso,  in  the  "Enciclopedia  medica  italiana"  (Vallardi,  1875),  Article 
"Cranio,"  p.  193;  Verga,  "D  cranio,"  in  the  "  Archivio  italiano  per  le  maladie  ner- 
vose"  (1882),  II;  Dcdly,  Article  "  Craniologie,"  in  the  "  Dictionnaire  encyclo- 
pedique  des  Sciences  m^dicales,"  Vol.  XXII  (Paris,  1879),  p.  693;  Bastion,  "Le 
cerveau  organe  de  la  pens6e  chez  rhomme  et  chez  les  animaux"  (Paris,  1882),  II, 
Ch.  XXV. 


§39,40]     FUNDAMENTAL  OBJECTIONS  TO  DATA  71 

crime  by  the  favorable  circumstances  in  which  he  finds  himself. 
How  many  there  are  who  have  never  stolen  because  they  swim  in 
opulence  and  yet,  had  they  been  born  poor,  would  fill  the  prisons  !^ 
Or  again,  these  criminal  instincts  are  given  vent  under  veiled  forms 
and  thus  escape  the  criminal  code.  Instead  of  stabbing  his  vic- 
tim, he  entraps  him  in  perilous  enterprises.  Instead  of  being 
robbed  on  the  highways,  people  are  fleeced  in  the  gambling  of  the 
exchanges.  Instead  of  being  raped,  an  unfortunate  woman  is 
seduced  only  to  be  deceived  and  abandoned.  Side  by  side  with 
legal  and  manifest  wrongs  are  those  which  are  social  and  hidden; 
and  it  is  hard  to  say  which  are  the  more  numerous.* 

§  39.  Possibility  of  Crime  Existent  in  a  Man  of  Criminal  Traits  at 

All  Ages. 

There  remain  two  practical  and  decisive  considerations. 

We  do  not  know  if  the  man  who  has  these  anthropological 
traits  and  who  has  hitherto  been  honest,  will  be  honest  the  rest 
of  his  life.  Statistics  show  that  there  is  a  predominance  of  cer- 
tain crimes  at  different  ages;  and  if,  as  a  general  rule,  the  criminal 
does  not  show  his  tendencies  in  early  life,  he  may  have  remained 
honest  up  to  a  certain  age,  by  reason  of  favorable  circumstances 
(and  the  same  may  be  said  of  insanity  or  suicide),  but  finally 
yields  to  his  inborn  instincts,  the  symptoms  of  which  already 
existed  in  these  abnormal  characteristics.^ 

§  40.  Apparent  Honesty  in  Face  of  Anthropological  Data  Often  Deceptive. 
But  above  all  we  do  not  know  with  certainty  that  the  individ- 
ual in  whom  these  characteristics  are  noted,  is  really  honest,  as 
we  believe  him  to  be.  It  is  well  known  that  many  of  the  most 
serious  crimes  are  committed  without  becoming  known  or  without 
the  detection   of   the  perpetrators.     Furthermore,  once  the  de- 

1  Lombroso,  "  Delinquente  d'occassione,"  A.  P.  (1881),  II,  3,  p.  323. 

^  I  shall  return  shortly  to  this  assertion  (already  advanced  at  p.  103  of  my  3d 
edition)  in  treating  of  the  natural  definition  of  crime  and  again  in  discussing  Durk- 
heim's  idea  on  the  "social  normality  of  crime."  As  to  the  existence  of  latent  crim- 
inals or  of  pseudo-honest  people,  I  asserted  it  in  my  second  edition  in  1884  (p.  198) 
before  Maudsley,  "Remarks  on  Crime  and  Criminals,"  in  the  "Journal  of  Mental 
Sciences"  (July,  1888),  and  Corre,  in  "Les  criminals"  (Paris,  1889),  p.  359,  were 
of  the  few  who  observed  the  same  fact.  It  has  since  been  frequently  referred  to 
down  to  the  recent  monographs  of  Pinsero,  de  Ferriani,  d'Angiolella  and  the  post- 
humous work  of  Poletti.    Of  these  I  shall  speak  presently. 

'  See  a  striking  case  in  Aly  Belfadel,  "Prevision  verifiee  de  delinquence  chez 
un  individu  du  type  criminel,"  A.  P.,  XIX,  28. 


72  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  40 

tected  delinquents  are  released  from  prison,  they  all  mingle  with 
society,  undistinguished  from  honest  folk  by  those  who  are 
ignorant  of  their  antecedents.  While  there  are  many  of  them 
who  are  only  occasional  delinquents  and  who  have  committed 
only  sUght  crimes,  this  is  not  true  of  all.  There  are  therefore  two 
categories  of  real  delinquents  who  have  undergone  their  punish- 
ment, who  are  able  to  pass  for  honest  men  and  present  an 
apparent  exception,  but  in  reality  are  a  confirmation  of  the  con- 
clusions of  anthropology.^  While  these  facts  show  on  the  one 
hand  that  this  oft-repeated  objection  reduces  itself  to  a  very  few 
real  exceptions  and  these  explainable  by  the  law  of  heredity,  on 
the  other  hand  it  suppUes  the  means  of  fixing  from  now  on  the 
generic  value  of  the  different  conclusions  of  anthropology.  Thus, 
when  it  is  said  that  delinquents  present  certain  abnormal  charac- 
teristics, it  is  not  meant  that  these  must  necessarily  be  met 
with  in  all  delinquents  and  never  met  with  in  non-delinquents. 
The  observation  has  an  entirely  relative  value.  But  it  is  not 
on  that  account  less  positive  or  less  conclusive  —  implying 
as  it  does  a  greater  frequency  of  these  characteristics  in  the 
delinquent  compared  with  the  normal  man.  It  has  also  an 
individual  value  along  with  its  collective  value,  in  cases  where 
an  extraordinary  reunion  of  anomalies  is  found  in  the  sane 
individual;  since  in  such  case  the  probability  and  the  plenitude 
of  the  type  increase  in  a  geometrical  ratio  with  the  accumulated 
characteristics.  As  to  the  second  part  of  the  objection  which 
bears  on  the  point  that  the  anomalies  of  dehnquents  are  also 
found  in  the  non-delinquent  insane  and  in  degenerates  in  general, 
it  is  connected,  as  we  shall  see,  with  the  opinion  according  to 
which  congenital  delinquency  is  only  a  branch  of  the  trunk  from 
which  insanity  springs,  or  rather,  that  it  is  nothing  else  than  one 
of  the  numerous  forms  of  general  degeneracy.  As  those  who 
contradict  us  admit  at  least  the  fundamental  affirmation  that 
the  delinquent  is  more  or  less  different  physically  and  psychically 

^  In  accordance  with  some  statistical  researches  which  I  shall  disclose  elsewhere 
in  connection  with  the  social  factors  of  homicide,  I  believe  that  approximately  in 
a  hundred  male  Italians  over  fifteen  years  of  age,  there  are  five  unknown  delin- 
quents. I  have  calculated  this  figure  with  striking  precision  even  in  the  case  of 
the  seven  hundred  soldiers  whom  I  studied  in  comparison  with  seven  hundred 
convicts.  In  accordance  to  this  one  readily  sees  with  what  great  prudence  one 
should  accept  the  proportion  of  anthropological  characteristics  in  the  normal  per- 
sons studied;  for  instance  in  the  hospitals,  poor  houses,  etc.,  where  there  are  really 
five  per  cent,  and  perhaps  ten  per  cent,  of  unknown  delinquents.  The  same  con- 
clusions are  found  in  Laurent,  "Les  habitues  des  prisons"  (Lyon,  1890),  p.  331. 

V 


§41]  FUNDAMENTAL  OBJECTIONS  TO  DATA  73 

from  honest  folk,  I  reserve  this  point  for  the  examination  which 
I  shall  make  of  the  last  objection. 

§  41.   Historical  and  Anthropological  Indetermination  of  Crime. 

The  historical  and  anthropological  indetermination  of  crime, 
and  hence  of  the  criminal,  is  another  capital  objection  directed 
from  various  quarters  against  the  indications  of  criminal  an- 
thropology. How,  they  say,  can  you  fix  the  characteristics  of 
the  delinquent,  unless  you  begin  by  telling  us  what  crime  is  aside 
from  the  penal  laws.'*  Given  the  enormous  variations  that  the  dif- 
ferences of  social  evolution  have  imposed  and  do  impose  on 
human  acts  in  different  epochs  and  countries,  so  that  acts  to-day 
declared  the  most  criminal,  such  as  parricide,  have  been  and  are 
permitted  and  even  recognized  as  obUgatory  in  other  times  and 
places;  while,  vice  versa,  some  acts  which  are  not  now  classed  as 
criminal,  such  as  magic  or  blasphemy,  were  the  most  serious 
delicts  in  the  Europe  of  the  Middle  Ages  and  still  are  among  many 
savages;  given  this  historical  indetermination  of  crime,  must  not 
the  anthropological  characteristics  of  delinquents  vary  from  one 
epoch  to  another,  from  one  place  to  another.'*  And  in  prehistoric 
or  savage  humanity,  where  murderers  were  not  delinquents, 
should  not  the  criminal  marks  be  absent?  Or,  indeed,  vice  versa, 
did  the  magicians  and  heretics  of  the  Middle  Ages  have  these 
characteristics  and  lose  them  only  when  the  penal  laws  became 
more  civilized? 

This  objection  can  be  understood  when  it  comes  from  critics 
hostile  to  the  experimental  method,  who  always  judge  positive 
data  according  to  their  abstract  and  traditional  syllogisms; 
but  it  was  not  to  be  expected  from  critics  who  understand  how 
to  follow  the  positive  method,  like  ourselves,  and  who  approve 
the  scientific  trend  of  criminal  sociology.  The  objection,  like 
so  many  others,  springs  from  the  incomplete  and  unilateral  idea 
which  the  critics  of  criminal  anthropology  form  of  the  new 
doctrines  and  which,  owing  to  its  convenience  in  controversy, 
they  have  been  unwilling  to  renounce.  This  unilateral  idea  is, 
that  we  maintain  crime  to  be  exclusively  the  product  of  anthropo- 
logical factors  and  not  of  physical  and  social  factors  as  well.  And 
yet,  for  my  part,  ever  since  the  first  edition  of  this  work  (1881), 
I  have  insisted  so  strongly  and  so  often  on  the  indissoluble  associa- 
tion of  the  three  orders  of  natural  factors  of  criminality,  that  it 
seems  to  me  our  critics  should  no  longer  stop  their  ears  to  our 


74  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§42 

fundamental  conclusion.  Neglecting  for  the  moment  the  physi- 
cal factors  of  crime  in  order  to  simplify  the  problem  and  because 
they  are  not  directly  involved  in  this  special  argument,  we  can 
once  more  repeat  that  crime  in  general  is  the  resultant  of  combined 
biological  and  social  factors,  and  that  the  reciprocal  influence  of 
biological  and  social  factors  is  different  for  each  of  the  crimes,  not 
only  in  their  different  forms  of  homicide,  robbery,  and  rape,  but 
also  for  the  varieties  of  each  criminal  species  (homicide  committed 
from  passion,  or  for  the  purpose  of  robbery,  or  from  insanity,  or 
for  revenge). 

Thus  social  factors  predominate  in  crimes  against  property; 
biological  factors  in  crimes  against  the  person;  although  both 
classes  of  factors  concur  always  in  the  natural  determination  of 
every  crime.  If  we  take  robbery  as  an  example,  it  is  very  evi- 
dent that  the  influence  of  the  several  factors  is  different  in  the 
diverse  varieties  of  delinquents  who  commit  it.  The  influence  of 
the  social  medium  is  greatest  in  simple  thefts  committed  through 
occasion  or  by  acquired  habit.  It  is  less  in  those  robberies  which 
are  accompanied  by  violence  to  the  person,  where  there  is  a  pre- 
dominance of  the  organic  or  psychic  temperament  of  the  delin- 
quent. This  being  the  case,  let  us  then  begin  by  replying  that  the 
characteristics  solely  organic  noted  by  criminal  anthropology  in 
delinquents  are  much  more  striking  and  much  more  frequent  in 
these  fundamental  forms  of  criminality  which  are  less  subject  to 
the  variations  of  the  social  medium.  Of  these  forms,  the  most 
important  are,  as  I  have  said  elsewhere,  homicide  and  robbery. 

Now,  in  the  first  place,  it  is  beyond  dispute  that,  at  least  in  the 
historical  evolution  of  humanity,  homicide  and  robbery  which 
are  superlatively  anti-social,  have  always  been  considered  as 
crimes,  whatever  may  have  been  the  legal  criteria  invoked  for 
their  punishments.^ 

§  42.   Indetennination  of  Crime  not  All-inclusive. 

The  historical  indetermination  of  crime,  therefore,  should 
not  be  affirmed  in  a  general  and  absolute  maimer  for  all  crimes. 
It  applies  especially  to  those  forms  of  crime  (evolutionary  crimi- 
nality) which,  as  we  shall  see  presently,  are  the  special  more  or  less 

'  It  is  strange,  for  instance,  that  Legrain,  in  "  La  medicine  legale  du  degenere," 
A.  A.  C.  (Jan.  1894),  in  order  to  criticise  certain  inductions  of  criminal  anthropol- 
ogy, should  say:  "to  speak  of  the  criminal-bom  amounts  to  saying  that  one  is  bom 
with  aptitudes  for  the  commission  of  acts  on  the  value  of  which  the  whole  toorld  is 
V 


§43]  FUNDAMENTAL  OBJECTIONS  TO  DATA  75 

transitory  product  of  particular  social  conditions.  It  applies 
only  to  the  crimes  and  delinquents  where  the  influence  of  anthropo- 
logical factors  is  less  and,  hence,  where  their  presence  is  less  ob- 
vious and  less  important.  On  the  contrary,  in  fundamental 
crimes  (atavic  or  anti-human  criminality),  which,  under  one  name 
or  another  are  suppressed  more  or  less  by  men  either  collectively 
or  individually  but  are  reproduced  in  every  phase  of  human  evo- 
lution, there  is  no  reason  to  believe  that  their  perpetrators,  if 
subjected  to  examination,  would  not  show  the  most  characteristic 
marks  indicated  by  anthropology  as  found  in  contemporary 
criminals.  To  cite  actual  proof,  Lombroso  noted  in  twelve  skulls 
of  delinquents  of  the  Middle  Ages,  the  same  anomalies  as  shown 
by  the  skulls  of  modern  criminals.  For  instance,  the  enormous 
development  of  the  jaws  wherein,  as  I  have  demonstrated,  one 
should  note  a  characteristic  mark  of  homicides  committed  through 
anti-human  fury  (revenge,  ferocity,  or  cupidity),  being  produced 
by  the  predominance  of  egotistical  functions  and  instincts  and 
manifesting  aggressive  and  violent  tendencies,  will  be  found  in 
contemporary  delinquents  (I  speak  of  the  sanguinary  kind)  as 
well  as  in  the  men  of  the  Middle  Ages  and  in  savages.  And  this, 
notwithstanding  that  violent  homicide  has  been  known  and  pun- 
ished in  many  different  ways  in  the  different  phases  of  social 
evolution.  The  only  difference  is  that  the  great  development  of 
the  jaws,  while  the  general  rule  among  savage  peoples  (and  hence 
there  is  no  well-defined  criminal  type  among  them),  becomes  an 
exception  (through  atavism  or  through  pathology)  among  civi- 
lized peoples.  From  this  comes  the  teratological  distinction  of  a 
criminal  type  among  the  latter. 

§  43.  Connotation  of  Crime  Changes ;  Not  so  Criminality. 

This  is  not  all :  Even  should  crimes  change  absolutely  from  one 
phase  of  social  evolution  to  another,  it  would  be  an  equivocation 
to  seek,  for  instance,  in  the  savage  parricide  through  filial  duty, 
the  organic  and  psychic  anomalies  that  we  find  among  the  parri- 
cides of  civilized  countries.  It  is  the  personal  motive  of  human 
acts,  not  the  name  or  legal  definition,  that  is  of  value  in  criminal 
anthropology.     The  delinquent  in  his  typical  form  of  the  born- 

disputing."  How  so?  We  have  never  dreamed  of  speaking  of  the  criminal-bom 
in  connection  with  debatable  crime  of  purely  political  or  police  creation,  but 
who  will  deny,  for  instance,  that  murder  with  violation  is  not  a  crime,  that  is  an 
anti-human  and  anti-social  act? 


76  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§44 

delinquent  is,  for  the  criminal  anthropologist,  an  individual  with 
antisocial  instincts.^ 

§  44.  The  Social  Environment  Gives  the  Form  to  Crime  Which  Has  its 
Base  in  the  Biological  Factor.* 

Human  social  evolution  is  not,  after  all,  as  rapid  and  unstable 
as  the  combinations  of  a  moving  kaleidoscope.  If  we  consider 
homicide,  robbery,  rape,  or  forgery,  we  will  find  that  from  the 
Roman  Law  to  our  own  day,  a  period  of  about  twenty  centuries, 
the  moral,  social,  and  legal  conceptions  of  these  crimes  are  funda- 
mentally the  same,  whatever  may  have  been  the  supervening 
changes  in  the  forms  of  legal  and  social  sanction,  opposed  to  them. 
Sentiments  which  are  the  most  energetic  determinants  of  human 
action  change  much  less  slowly  than  ideas,  both  in  time  and 
space.  Thus  (a  new  confirmation  of  fact),  we  encounter  in  the 
eflSgies  of  the  more  cruel  and  unbalanced  Roman  emperors  (as 
proved  by  Mayor  and  Lombroso)  the  characteristic  marks  appro- 
priate to  the  criminals  and  degenerates  of  to-day.  Be  this  as  it 
may,  our  conclusion  should  always  be  that  it  is  of  very  little  im- 
portance to  us  to  know  what  anomalies  were  present  in  the 
criminals  of  ten  or  twelve  thousand  years  ago,  or  even  that  they 
are  those  of  contemporary  savages,  for  we  are  dealing  with  crim- 
inal sociology  for  the  civilized  countries  of  our  own  times  and  the 
near  future,  without  any  metaphysical  pretension  of  formulating 
absolute  and  eternal  laws. 

^  V.  Chap.  Ill,  post,  where  I  will  explain  the  ulterior  distinction  between 
atavic  criminality  (anti-human  or  anti-social  in  the  full  sense)  and  evolutionary 
criminality  (anti-social  in  a  restricted  and  political  sense). 

*  The  following  recent  authors  are  in  accord  with  this  thought:  Tarde,  "Bribes 
de  statistique  Americaine,"  in  the  "Archivio  anthropologica  criminale"  (Novem- 
ber, 1892),  p.  692:  he  says  the  social  factors  are  the  directive  causes  and  the  anthro- 
pological and  physical  factors  are  the  impulsive  causes;  Dallemagne,  "fitiologie 
foncionnelle  du  crime,"  in  the  A.  C.  (Brussels,  1893),  p.  141;  Pelmann,  "Wis- 
senschaft  und  criminalitat,"  in  the  "Prager  Med.  Woch."  (1895),  and  A.  P.  XVII, 
p.  317;  Orchanski,  "Les  criminels  nisses  et  la  th6orie  C.  Lombroso,"  in  the  A.  P. 
(1898),  IX,  17. 

Even  among  the  critics  of  criminal  anthropology,  Nilcke  has  recently  been 
forced  to  declare  that  in  the  origin  of  crime,  no  less  importance  should  be  given  to 
the  individual  factors  than  to  the  conditions  of  the  medium. 

Ndcke,  "Die  criminal  anthropologic,  ihre  femeren  Aufgaben  und  Verhaltniss 
zur  Psychiatric"  (1894),  general  considerations  on  criminal  psychiatry,  in  the 
A.  C.  A.  C.  (Geneva,  1897),  p.  8.  He  there  says:  "I  now  share  the  opinion  of 
those  who  believe  that  the  individual  motive  is  the  principal  thing."  On  the 
same  point,  see  Ottolenghi,  "H  fattore  antropologico  e  I'ambiente  nelle  questioni 
flociali,"  in  the  "Rivista  di  Sociologia"  (February,  1895),  p.  132. 


§  45]         FUNDAMENTAL  OBJECTIONS  TO  DATA  77 

§  45.   "Mala  Prohibita"  and  "Mala  in  Se.»» 

The  objection  has  another  aspect  which  disputes  the  very- 
foundation  of  criminal  anthropology,  by  declaring  the  researches 
unjustified  unless,  aside  from  the  variable  penal  laws,  precise 
limits  are  set  between  crimes  and  normal  action,  according  to 
natural  and  social  criteria.  Garofalo  found  it  necessary  to  meet 
this  difficulty  with  his  definition  of  "natural  crime"  as  distinct 
from  "legal  crime."  "This,"  he  writes,  "is  in  order  that  one  may 
know  what  delinquents  the  naturaHst  speaks  of  when  he  gives 
his  connotation  of  crime.  In  a  word,  it  is  natural  crime  that  must 
be  established."  ^  He  thus  takes  up  under  another  aspect  the 
distinction  between  natural  crimes  and  those  of  "purely  political 
creation,"  as  Del  Lungo  called  them.  Romagnosi  had  indicated 
this  distinction  in  speaking  of  "natural  crimes  and  made  crimes 
('factices'),"  and  in  recalling  that  the  Romans  distinguished 
"acts  which  are  considered  crimes  because  the  moral  sense  and 
right  conscience  reprobate  them  ('natura  turpia  sunt'),  from  those 
which  the  special  circumstances  of  a  people  require  to  be  pro- 
hibited for  the  common  safety  ^  ('civihter  et  quasi  more  civitatis')-'* 
This  distinction  is  also  established  in  Anglo-Saxon  law  between 
"common-law  crimes"  ("mala  in  se")  and  "statutory  crimes" 
("mala  prohibita").'  Garofalo's  definition  was,  however,  an 
original  and  happy  attempt,  although  for  my  part,  as  Fioretti 
had  already  remarked  and  as  I  have  said  elsewhere,  I  do  not  feel 
the  antecedent  necessity  for  such  a  definition.  In  my  opinion, 
a  definition  with  which  metaphysicians  and  classical  jurists  ever 
love  to  begin,  can  on  the  contrary  only  be  the  ultimate  synthesis. 
It  should,  therefore,  come  at  the  end  and  not  at  the  beginning 
of  the  researches  of  criminal  sociology.*  And  this  is  not  only 
because  the  general  reasons  of  the  positive  method  require  it; 

1  Garofalo,  "Crimmologia",2d  ed.  (Turin,  1891),  p.  2. 

*  Romagnosi,  "Genesi  del  diritto  penali."  §1545;  Capobianco,  "H  diritto 
penale  di  Roma  in  con  fronto  al  diritto  penale  vigente  e  alle  teorie  della  scuola 
positiva"  (Florence,  1894),  p.  163. 

'  Holmes,  "The  Common  Law"  (Boston,  1881);  Harris'  "  Principles  of  the 
Criminal  Law"  (New  ed.  London,  1881-9). 

*  Hamon,  "  Determinisme  et  responsibilite"  (Paris,  1898),  p.  66,  on  the  con- 
trary, thinks  that  an  antecedent  (I  was  about  to  say  "a  priori")  definition  is  nec- 
essary, in  order  that  all  may  understand  the  precise  object  of  criminology.  But  the 
example  that  he  cites;  namely,  that  all  chemists  call  bodies  composed  of  an  acid 
and  a  base  salts,  only  confirms  my  thought.  Chemists  reached  agreement  on  this 
definition  of  salts,  not  before,  but  after  long  analytical  labors  carried  on  with  the 
existence  of  this  definition. 


78  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  46 

but  also  because  the  difficulty  raised  by  opponents  and  combated 
by  Garofalo  is  not  serious.  Tarde,  in  speaking  of  a  work  of  Beau- 
sire,  who  attributes  great  importance  to  the  new  ideas  and  who 
concerns  himself  also  with  Garofalo's  definition  of  natural  crime, 
declares  that  to  him  crime  is  always  "a  wilful  violation  (he  does 
not  say  a  free  violation)  of  law."  ^ 

§  46.  Juridical  Crime  and  the  Criminal  from  a  Sociological  Point  of  View. 

Now  this  is  remaining  in  the  old  circle  where  crime  is  what  the 
legislator  punishes;  and  one  thus  only  j>erpetuates  (and  this  was 
logical  in  the  classical  school)  that  most  ancient  principle,  accord- 
ing to  which  delict  is  what  the  "divinity"  forbids.  There  was 
simply  a  substitution  of  the  "Lord's  anointed"  for  the  "divinity," 
and  finally,  with  progressive  socialization  this  became  "the  legis- 
lator." It  is  therefore  necessary  to  make  the  essential  difference 
clear  between  the  anthropologico-criminal  viewpoint  and  the 
sociologico-criminal  viewpoint. 

In  the  eyes  of  the  criminal  anthropologist,  he  who  slays  for 
gain,  and  he  who  urges  his  victim  to  suicide  in  order  to  come  into 
an  inheritance,  are  both  equally  criminal.  His  object  is  the  study 
of  the  organic  and  psychic  constitution  of  each,  in  so  far  as  this 
constitution  is  abnormal.  Quite  different  is  the  criminal  soci- 
ologist's point  of  view  relative  to  the  legal  and  social  measures 
which  can  be  derived  from  this  anthropological  data  and  which 
we  shall  take  up  in  the  proper  time  and  place.  For  we  should 
not  by  a  mere  reasoning  process  rush  into  the  conclusion  to  which 
some  critics  wish  to  force  us,  namely,  that  according  to  our  thesis 
it  would  be  necessary  to  imprison  all  those  who  show  abnormal 
biological  characteristics.  Let  us  repeat  again  that  crime  is  also 
the  effect  of  physical  and  social  as  well  as  biological  factors.  And, 
as  the  biological  condition  does  not  of  itself  suffice  to  cause  the 
commission  of  a  crime  (it  can  be  neutralized  by  the  action  of  a 
favorable  medium),  society  may  devote  itself  to  these  biological 
anomalies  in  the  pedagogical  and  hygienic  order,  but  never  in  the 
order  of  legal  repression.  In  the  same  way  that  insanity  gives 
rise  socially  to  defensive  measures  only  when  manifested  by 
mania,  so,  also,  in  a  social  sense,  criminal  tendencies,  even  when 
revealed  by  physiognomic  and  psychic  traits,  cannot  be  the  oc- 
casion for  repressive  measures  until  manifested  in  some  concrete 

^  Tarde,  on  Beausires  "Les  Principes  de  droit,"  A.  A.  C.  (July,  1888),  pp. 
87-389. 


§47]  FUNDAMENTAL  OBJECTIONS  TO  DATA  79 

form,  by  an  aggressive  act,  —  in  a  crime  either  attempted  or  ac- 
complished. For  the  legislator  as  well  as  for  the  judge  and  pub- 
lic sentiment,  a  born-criminal  may  be  legally  an  honest  man.  And 
this  not  so  much  because  he  belongs  to  the  band  of  those  who  are 
studied  as  "artful  and  fortunate  delinquents,"  that  is,  those  who 
are  able  by  cunning  and  the  abuse  of  power  to  escape  the  penalty 
of  the  law  which  they  have  actually  violated;  ^  it  is  principally 
because  one  may  never  have  violated  the  penal  code  and  be  none- 
the-less  morally  and  socially  a  rascal  often  endowed  with  brilliant 
faculties,  but  certainly  worse  than  many  convicts.  As  epilepsy 
has  its  psychic  equivalents  which  replace  its  muscular  convul- 
sions, so  delinquency  has  social  equivalents  which  in  the  more 
cultivated  classes  replace  its  brutal,  atavic,  violent  forms  with 
anti-social  or  immoral  forms  of  activity  which  circumvent  the 
law  without  a  frontal  attack.^  Thus  rape  becomes  seduction; 
the  prostitute  becomes  the  elegant  adulteress  and  the  "demi- 
vierge";  the  robber  becomes  the  usurer  and  the  Panama  stock- 
jobber; the  yeggman  becomes  the  duelist  or  the  colonial  or 
warlike  adventurer. 

§  47.  The  Proper  Subject  of  Criminal  Anthropology. 

This,  in  conclusion,  is  why  this  prejudiced  objection  offered 
to  criminal  anthropology  is  not  maintainable;  not  alone  because 
for  the  greater  part  of  the  time  this  science  studies  the  authors  of 
crimes  which  I  have  called  fundamental  and  relatively  constant, — 
homicides,  thieves,  assassins,  and  individuals  guilty  of  assault 
and  rape,  —  but  because  the  fact  remains  that  the  proper  subject 
of  criminal  anthropology  is  the  anti-social  individual  in  his  ten- 
dencies and  in  his  activity.  Further,  it  is  evident  that  (in  the  ab- 
sence of  precise  limits,  anthropologically  and  socially  speaking, 
between  criminals  and  honest  folk)  the  new  researches,  by  estab- 
lishing the  presence  or  absence  of  abnormal  characteristics  in  the 
different  authors  of  all  the  crimes  punished  in  a  given  penal  code, 
supply  the  criminal  sociologist  with  elements  much  more  positive 
than  juridical  syllogisms,  demanding  measures  and  reforms  con- 
formable to  the  results  of  criminal  anthropology  combined  with 
the  study  of  the  physical  and  social  factors  of  crime. 

^  Ferriani,  "Delinquenti  scaltri  e  fortunati"  (Rome,  1897);  Luisa  Anzoletti, 
"  Gliasteroidi  della  delinquenza,"  in  the  "Revista  intemazionale  di  science  sociale" 
(April,  1897),  p.  541;  Tarde,  "Les  transformations  de  I'impunite,"  in  the  A.  C.  C. 
(15  November,  1898). 

*  AngioleUa,  "Gii  equivalenti  della  criminality,"  A.  P.  (1889),  XX,  Fasc.  I. 


80  DATA  OF  CRIMINAL  ANTHROPOLOGY    [§  48,  49 

§  48.  Sociological  Definition  of  Crime. 

As  to  the  sociological  definition  of  crime  in  a  naturalistic  sense, 
as  I  shall  have  no  other  occasion  to  deal  with  it,  I  will  say  in  pass- 
ing that  the  definition  of  Garofalo,  original  and  happy  as  it  is, 
does  not  seem  to  me  to  be  complete.  In  saying  that  natural  crime 
is  the  "violation  of  the  fundamental  altruistic  sentiments  of  pity 
and  of  probity  in  the  average  measure  in  which  they  occur  in 
civilized  humanity,  by  acts  hurtful  to  the  collectivity,"  only  one 
phase  of  the  criminal  phenomenon  is  presented,  that  is,  its  op- 
position to  certain  general  sentiments.  It  is  a  fundamental  but 
an  incomplete  truth,  failing  as  it  does,  to  consider  many  other 
sentiments  such  as  modesty,  rehgion,  and  patriotism.  And 
further,  these  very  sentiments  of  pity  and  probity  in  their  turn  are 
but  the  hereditary  and  changeable  effects  of  the  social  conditions 
of  existence  in  accordance  with  the  difiFerent  phases  of  human 
evolution.  As  early  as  the  first  and  second  editions  of  this  work, 
I  placed  the  positive  criterion  of  natural  criminality  in  these 
conditions  of  social  existence  as  well  as  in  the  social  or  anti-social 
motives  which  determine  the  act. 

§  49.  Criticism  of  This  Sociological  Definition  of  Crime;  Hannless  Acts  Held 

Criminal. 

An  eminent  sociologist  has  offered  two  objections  to  this  funda- 
mental conception,  —  objections  not  drawn  from  fallen  syllogistic 
verbalism,  but  of  a  positive  kind.  We  give,  he  says,  an  exagger- 
ated part  to  calculation  and  reflection  in  directing  social  evolution, 
because  there  are  many  prohibitions  of  fact  which  do  not  at  all 
affect  the  conditions  of  individual  or  social  existence.  How, 
for  instance,  can  there  be  any  social  danger  in  the  fact  of  touching 
an  object  which  is  taboo  or  of  eating  certain  meats?  ^  It  is  easy 
to  reply  that,  on  the  contrary,  the  criterion  of  the  defense  of  the 
conditions  of  existence  concedes  a  great  part  to  the  social  instinct 
in  the  interdiction  of  certain  facts  which,  like  the  two  acts  above- 
mentioned,  may  seem  inoffensive  in  an  advanced  phase  of  social 
evolution  where  they  are  but  mere  survivals,  but  which  are  re- 
sponsive to  obvious  social  necessities  in  primitive  phases  and 
diflBcult  conditions  of  existence  (islands,  for  example)  or  of  hy- 
giene (hot  climates)  imposing  a  punishment  which  in  other  times 
and  places  becomes  absurd, 

^  Durkheim,  "Division  du  travail  social"  (Paris,  Alcan,  1893),  p.  75. 


§50]  FUNDAMENTAL  OBJECTIONS  TO  DATA  81 

§  60.    Criticism  of   This  Sociological  Definition  of  Crime;    Inequality  of 

Penalty. 

Our  attention  is  called  to  the  fact  that  certain  acts  more  dan- 
gerous to  the  conditions  of  social  life  (for  instance,  bankruptcy, 
as  compared  with  homicide)  are  less  severely  punished  or  even 
not  at  all.  To  that  we  reply:  Aside  from  the  case  where  the 
slayer  (for  instance  when  there  has  been  provocation)  may  be 
less  severely  punished  than  the  fraudulent  bankrupt,  the  criterion 
of  social  gravity  does  not  consist  in  the  material  objective  dam- 
age but  primarily  in  the  offensive  power  of  the  agent.  This  is 
precisely  what  the  positive  school  believes,  while  the  classical 
school,  spiritualistic  though  it  be,  materializes  penal  justice  too 
much  by  proportioning  the  penalty  to  the  material  consequences 
of  the  deed.  The  foundation  of  natural  criminality  is,  therefore, 
the  attempted  or  consummated  attack  upon  the  conditions  of 
individual  and  social  existence.  Uniting  certain  elements  put 
in  evidence  by  Garofalo,  by  myself,  and  by  Liszt,  and  reproducing 
almost  identically  the  terms  used  by  Berenini,'  Colajanni  finally 
gives  a  definition  of  natural  crime  which  seems  to  me  positive 
and  complete:  "Punishable  acts  (delicts)  are  those  which,  deter- 
mined by  individual  and  anti-social  motives,  disturb  the  conditions 
of  existence  and  shock  the  average  morahty  of  a  given  people  at 
a  given  moment."  ^  Yet  a  multitude  of  anti-social  and  immoral 
acts  do  not,  on  that  sole  account,  enter  into  the  number  of  the 
crimes  designated  by  the  law  as  punishable.  And  it  may  happen 
that  punishment  may  not  be  the  most  appropriate  social  remedy 
for  those  which  do  so  enter.  That  is,  we  impinge  here  upon  the 
distinction  between  civil  and  criminal  law,  between  prevention 
and  repression,  a  subject  which  I  shall  take  up  in  treating  of  re- 
sponsibility.^ Without  passing  in  review  here  all  of  the  definitions 
which  have  been  given,  and  having  clearly  indicated  above  what 
my  opinion  is,  I  will  consider  only  three  typical  definitions;  the 
first,  Proal's  eclectic;  the  second,  Durkheim's  sociological;  and 
the  third,  Bahar's  biological  definition. 

1  Berenini.  "OflFese  e  diffese"  (Parma,  1886),  Vol.  I,  p.  39. 
*  Colajanni,  "  Sociologia  criminale,"  I,  p.  64. 

'  See  the  Italian  editions,  where  this  subject,  omitted  by  Fend  in  the  later 
French  edition,  was  inserted. 


82  DATA  OF  CRIMINAL  ANTHROPOLOGY    [§  51,  52 

§  61.  Eclectic  Definition  of  Crime ;  ProaL 

Proal,  like  many  other  eclectics,  starting  with  the  idea  of  estab- 
lishing the  substance  of  crime  aside  from  and  transcendant  to 
all  positive  penal  laws,  does  not  in  reahty  emerge  from  the  criteria 
of  spiritualism  or  juridico-traditional  philosophy.  He  takes  up 
the  idea  of  Pellegrino  Rossi,  according  to  whom  crime  is  "the 
violation  of  a  duty,"  and  he  defines  it  as  "the  violation  of  a  social 
duty  imposed  for  the  preservation  of  society,"  which  is  the  defini- 
tion contained  in  the  first  article  of  the  Penal  Code  of  Neufchatel: 
"Crime  is  the  violation  of  the  duties  imposed  by  the  law  in  the 
interest  of  social  order."  ^  This  definition  is  equivocal:  either 
there  is  question  of  a  "social  duty"  not  enforced  by  political  law, 
and  in  that  case  it  is  a  more  vague  expression  than  that  anti- 
social quahty  in  the  act  and  its  motives  which  constitutes  the 
nucleus  of  our  definition;  or,  else,  there  is  question  of  a  social 
duty  strengthened  by  the  sanction  of  the  penal  law  and  in  that 
event  it  lapses  again  into  the  empirical  conception  of  the  juris- 
consults. 

§  62.  Durkheim's  Definition  of  Crime. 

Durkheim,  who  is  the  most  original  and  the  most  genuine  posi- 
tivist  (in  the  larger  sense  and  not  that  employed  by  Compte)  of  con- 
temporary French  sociologists,  after  repeating  with  us  that  Garo- 
falo's  definition  is  incomplete,  finally  says:  "An  act  is  criminal 
when  it  wounds  the  vigorous  and  definite  (?)  states  of  the  collective 
conscience."  If  we  have  attacked  the  preceding  formula  for  in- 
completeness, this  with  its  lack  of  precision  is  far  from  completing 
it.  And  further,  in  Durkheim's  sociological  system,  it  is  worth- 
less, for  he,  with  his  accurate  conception  that  sociological  facts 
should  be  examined  objectively  (meaning  by  sociological  fact 
"every  ride  of  conduct  to  which  is  attached  a  sanction  spread 
through  the  collective  conscience"),  concludes  that  all  crimes, 
even  those  which  offend  no  collective  sentiment,  belong  in  differ- 
ent degrees  to  the  same  category  and  that,  for  this  reason,  "what- 
ever be  its  varieties,  crime  is  ever  essentially  the  same."  ^  While 
in  an  exclusively  sociologico- juridical  domain,  that  may  be  exact 
(and  I  have  always  maintained  that  from  the  juridico-social 
point  of  view  there  is  only  a  difference  of  degree  between  crimes 

1  Proal,  "Le  crime  et  la  peine"  (Paris,  Alcan,  1894),  p.  500. 
*  Durkheim,  "De  la  division  du  travail  social,"  pp.  27,  77,  85,  88;  "Regies  de 
la  m6thode  sociologique,"  p.  51. 


§53]  FUNDAMENTAL  OBJECTIONS  TO  DATA  83 

and  contraventions  of  police),  in  the  anthropologico-social  do- 
main, it  amounts  to  a  simultaneous  denial  and  assertion  of  the 
necessity  of  scientific  analysis.  It  is  the  same  thing  as  if  a  chemist 
should  say  that  all  composite  bodies  are  composite  in  different 
degrees  and  that  it  is  therefore  futile  to  seek  to  distinguish  or 
classify  their  elements.  Durkheim  is  right,  however,  in  his 
attack  on  those  authors  who,  Uke  Bastien  and  Tarde,  dabble  in 
social  psychologism  and  say  that  social  facts  are  the  effect  and 
reaction  of  psychic  facts  and  that  they  do  not  in  themselves  pos- 
sess special  and  objective  conditions  of  existence  acting  and  react- 
ing on  psychic  facts;  but  he  is  wrong  when  he  forgets  (as  do  a 
number  of  theoretical  socialists,  aside  from  the  sociologists)  that 
social  facts  can  only  possess  a  relatively  autonomous  existence; 
because  society  has  its  base  and  its  roots  in  the  biological  facts 
of  anthropology. 

§  53.  Biological  Definition  of  Crime;  Bahar. 

According  to  Bahar  "Crime  is  the  expression  of  the  impotence 
of  the  individual  to  renounce  anthropophagy  (cannibalism,  direct 
or  indirect  attacks  on  human  life);  it  consists  in  satisfying  our 
instincts  and  passions  on  our  fellow  man  instead  of  exacting  the 
satisfaction  of  our  needs  from  material  things."  ^  It  is  obvious 
that,  by  a  defect  contrary  to  that  of  Durkheim's,  crime  is  here 
considered  only  under  an  exclusively  biological  aspect;  whereas 
we  have  always  maintained  (and  Manouvrier  ^  is  in  error  in  sup- 
porting this  idea  in  opposition  to  the  positivist  doctrines)  that 
crime  is  a  social  phenomenon,  because  without  life  in  society  it 
is  inconceivable  either  in  animals  or  in  men.  While  Manouvrier 
concludes  that,  for  that  reason,  crime  is  the  exclusive  product  of 
social  factors  (because  it  is  a  social  phenomenon) ;  we  contend,  in 
partial  disagreement  with  both  Manouvrier  and  Bahar,  that  while 
crime  is  a  social  phenomenon,  it  is  nevertheless  also  the  biological 
manifestation  of  one  or  many  individuals,  and,  hence,  it  is  error 
to  attribute  its  origin  exclusively  to  sociological  or  biological 
causes  since  these  two  indissolubly  interwoven  causes  concur  in 
producing  it. 

^  Bahar,  "Une  nouvelle  definition  du  crime  bas^  sur  la  science  biologique," 
in  "Revue  penitentiaire"  (1895),  p.  739. 

^  Manouvrier,  "Les  aptitudes  et  les  actes,"  in  the  "Bulletin  de  la  Societe 
d'anthropologie"  (Paris,  1809),  and  "I'Ere  nouvelle"  (October,  1893),  reiterated 
in  the  "Genese  normale  due  crime,"  B.  S.  A.  (15  September,  1893,  and  March, 
1894). 


84  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  5 

§  64.  Sociological  and  Biological  Bases  of  Crime. 

Exactly  for  that  reason,  I  have  called  crime  a  natural  and  social 
phenomenon,  which  is  not  a  mere  verbal  juxtaposition  of  two 
heterogeneous  quahties,  as  Carnevale  ^  thought  because  he  was 
unable  to  see  summed  up  in  this  expression  the  fundamental 
induction  of  modern  science,  —  an  induction  whereby  every  order 
of  complex  and  higher  phenomena,  far  from  excluding  the  under- 
lying order  of  more  simple  phenomena,  embraces  it  and  is  rooted 
in  it,  according  to  the  law  of  natural  development  formulated 
by  Ardigo:  namely,  that  every  later  and  more  distinct  phase 
follows,  without  destroying  or  eliminating,  preceding  and  indis- 
tinct phases  of  cosmic,  biological,  and  sociological  evolution.'^ 
Hence  there  can  be  no  social  fact  without  it  being  at  the  same  time 
a  biological  fact,  with  something  additional;  and  this  in  turn  is 
impossible  unless  it  is  at  the  same  time  a  physico-chemical  fact, 
with  something  added;  and  this  latter  is  a  cosmo- telluric  fact, 
with  something  additional.  The  something  additional  constitutes 
the  object  and  justification  of  the  special  science  for  each  order 
of  facts;  but  the  very  much  more  which  constitutes  its  base  and 
makes  it  possible,  should  not  be  forgotten.  None  of  the  defini- 
tions which  have  been  given  for  crime  responds  to  this  fundamen- 
tal induction  on  the  naturalness  and  continuity  of  the  phenomena 
of  the  imiverse,  in  the  gradation  of  their  increasingly  complex 
orders,  from  cosmic  life  to  physico-chemical  and  to  biologico-social 
life.  For,  even  when  the  definitions  are  exact  in  themselves, 
they  throw  light  on  only  some  element  or  aspect  of  the  criminal 
phenomenon  without  giving  a  complete  idea  of  it.  The  one  which 
does  give  a  complete  idea  of  it  and  which  is  responsive  to  this 
induction,  is  Berenini's  definition  and  it  is  also  mine.  It  responds 
not  only  to  the  exigencies  of  science  but  also  of  practicability  as 
we  shall  see  later.  That  criminal  science,  in  its  definition  of 
crime,  should  have  thus  reached  a  fertile  and  decisive  conclusion 
results  from  the  following  consideration  which  is  quite  essential. 
In  the  same  way  that  an  evolution  and  integration  of  fundamental 
doctrines  have  taken  place  in  sociology  where  determinism  and 
scientific  explanation  of  social  facts  first  appeared  under  the  most 
superficial  conditions,  because  most  apparent  even  to  the  sense 

^  Carnevale,  "II  naturalismo  nel  diritto  criminale,"  in  the  "Giustizia  penale," 
1895,  p.  575. 

*  Ardigo,  "La  fonnazione  naturale,"  Vol.  II,  of  his  "Opere"  (Padua,  1887). 

V 


^55^  FUNDAMENTAL  OBJECTIONS  OF  DATA  85 

of  the  community  (according  to  Compte,  ideas),  and  then  imder 
conditions  less  superficial  (according  to  Spencer  the  sentiments 
from  which  ideas  germinate),  and  finally  in  the  really  fundamental 
conditions  of  individual  and  collective  life  (according  to  Marx, 
the  needs,  from  which  spring  sentiments  and  ideas);  so  also,  in 
the  determination  of  crime  and  the  criminal  as  the  object  of 
criminal  anthropology,  a  beginning  was  made  by  pointing  out  the 
most  superficial  and  apparent  conditions  (according  to  Tarde, 
Vaccaro,  and  Proal,  the  interdiction  provided  by  the  law,  which 
is  really  an  intellectual  operation,  a  manifestition  of  ideas) ;  then 
determinants  of  this  interdiction  were  pointed  out  (according  to 
Garofalo,  Durkheim,  and  Severi,  the  sentiments);  but  finally, 
it  is  necessary  to  recognize  in  the  condition  of  existence  the  funda- 
mental determinant  from  which  spring  both  sentiments  and  ideas. 

§  66.  Distinction  Between  Anti-Human  and  Anti-Social  Criminality. 

And  since,  as  I  have  indicated  several  times,  these  conditions 
of  existence  are  individual  and  social  manifestations,  we  find  here 
the  root  of  the  basic  distinction  between  atavic  or  anti-human 
criminality  and  evolutionary  or  (in  the  strict  sense  of  the  word) 
anti-social  criminality,^  and  which  we  may  again  term  bio-social 
criminality,  when  it  compromises  also  the  conditions  of  individual 
existence  (for  instance,  murder,  assault,  rape,  and  robbery),  and 
social  criminaUty,  when  it  concerns  only  the  conditions  of  collec- 
tive existence  (for  instance,  political  outbreaks  and  controven- 
tions).^    The  characteristic  elements  of   natural  crime  are  the 

1  V.    Cap.  m,  Post. 

'  In  two  recent  articles,  Tarde  has  again  taken  up  the  notion  of  crime,  "Pro- 
blemes  de  criminalite,"  A.  A.  C.  (July,  1898),  and  "Qu'  est-ce  que  le  crime?"  R. 
P.  (October,  1898).  But,  while  criticising  the  definitions  proposed  by  Blocq  and 
Onanoff,  Garofalo  and  Colajanni,  he  proposes  nothing  new.  He  contents  himself 
with  a  few  syllogistic  variations  of  his  habitual  theme  of  imitation  and  imitability 
and  in  reproducing  two  of  my  ideas,  asserting  that  the  true  natural  crimes  are 
homicide  and  theft,  adding  (as  I  did  in  "Justice  penale"  [Brussels,  1898],  pp.  9-10) 
that  morality  extends  ("s'^tend")  more  than  it  changes  ("se  transforme"),  be- 
cause the  notion  of  "one's  neighbor,"  against  whom  immoral,  criminal,  and,  hence 
punishable  acts  are  committed,  extends  progressively  from  the  family  to  the  clan, 
tribe,  nation,  and  humanity. 

In  the  notion  of  crime,  Tarde  notices  primarily  the  two  psycho-sociological 
criteria  of  alarm  and  indignation.  He  then  devotes  himself,  as  is  his  habit,  to  alge- 
braic combinations  of  the  crimes  which  alarm  more  than  outrage  ("indignent"), 
which  outrage  more  than  alarm,  or  which  both  alarm  and  outrage  in  the  same 
degree. 

But  the  phenomenon  of  indignation  is  evidently  boimd  to  become  attenuated 
and  disappear  with  the  spread  of  the  conviction  (already  established  in  the  case 


86  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  56 

anti-social  quality  of  the  determining  motives  and  the  attempt 
made  upon  the  conditions  of  existence  (individual  or  social), 
which  imply  the  element  of  offense  to  the  average  morahty  of  a 
given  collective  group.  When  all  of  these  elements  are  united, 
we  have  the  atavic  forms  of  anti-human  criminality;  when  the 
first  (and  hence  the  last)  is  lacking,  we  have  forms  of  evolutionary 
or  pohtico-social  criminahty. 

In  the  meantime,  as  a  conclusion,  we  have  demonstrated  that 
criminal  anthropology,  whether  in  studying  the  authors  of  funda- 
mental crimes  unanimously  so  considered  by  all  civilized  peoples 
for  twenty  centuries,  or  in  relying  on  the  natural  elements  of 
anti-social  acts,  possesses  a  well  marked  field  of  its  own,  of  which 
it  furnishes  the  counterproof  of  precision  (not  in  an  absolute  way 
but  in  the  measure  proper  to  all  natural  sciences),  when  it  es- 
tablishes the  want  of  organic  and  psychic  anomalies  in  "pseudo- 
criminals,"  either  in  those  who  commit  apparently  criminal  acts, 
obeying  social  and  legitimate  motives  or  under  psychic  conditions 
which  are  not  pathological  but  exceptional  and  transitory,  or  in 
those  who  commit  acts,  which  the  law  punishes  but  which  do  not 
offend'  the  general  sentiment  of  the  community. 

S  66.  The  Existence  of  an  Anthropological  Criminal  Type. 

The  existence  of  an  anthropological  criminal  type  is  the  con- 
clusion that  most  shocks  the  mental  habits  and  illusions  of  a  more 
or  less  disguised  spiritualism.  It  is  also  combated  with  the 
greatest  persistence,  but  with  the  most  insufficient  and  least 
varied  arguments,  by  the  adversaries  of  criminal  anthropology. 
Topinard  goes  so  far  as  to  dispute  the  accuracy  of  the  word 
"type"  as  used  by  us.^     But  as  Lombroso  answered  him,  and 

of  the  insane  who  were  once  hated  and  dishonored)  that  crime  also  is  a  malady 
independent  of  the  free  will  of  the  individual.  As  to  the  alarm,  which  corresponds 
to  the  positive  element  we  have  indicated  in  the  attempt  made  upon  the  condi- 
tions of  individual  or  social  life,  Tarde  gives  an  erroneous  analysis  because,  habit- 
ually seeking  to  reduce  everything  to  imitation,  he  begins  (R.  P.,  p.  343)  with 
the  statement  "  that  all  collective  conscience  is  formed  from  ideas  which  are  at  first 
indiviAual  and  are  propagated  and  generalized  and  then  transmitted  by  tradition 
and  hereditary  imitation."  It  is  clear,  however,  that  the  collective  conscience  is 
formed  simultaneously,  or  very  nearly  so,  in  the  individuals  composing  the  group, 
under  the  suggestion  or  pressure  of  the  conditions  of  social  existence  (save  in  ex- 
ceptional cases,  and,  even  there,  thanks  to  the  predisposition  of  these  conditions 
of  collective  life),  and  that  it  is  not  an  idea  bom  in  the  brain  of  an  individual  "and 
then  propagating  itself,"  like  the  waves  of  a  pond  when  a  stone  is  thrown  into  it. 
^  Topinard,  "L'anthropologie  criminelle,"  in  the  "Revue  d'anthropologie," 
Nov.  15,  1887. 


§57]  FUNDAMENTAL  OBJECTIONS  TO  DATA  87 

Topinard  himself  wrote,^  if  type  means  "a  sum  of  distinctive 
characteristics,  a  sort  of  average,  which  Gratiolet  called  a  syn- 
thetic impression,"  and  Saint-Hilaire  defines  as  a  sort  of  fixed 
point  and  common  center  around  which  the  differences  are  but 
deviations  in  different  directions,  we  use  the  phrase  in  its  clear 
and  precise  sense.^  This  is  true  for  the  additional  reason  that, 
as  Broca  says,  "while  the  type  is  the  sum  of  characteristics,  in 
relation  to  the  group  which  it  characterizes,  it  is  also  the  sum  of 
the  most  striking  and  most  often  repeated  traits."  The  conse- 
quence is  that  not  only  in  criminal  anthropology,  but  even  in 
general  anthropology,  individuals  do  not  all  present  a  clean-cut 
and  complete  type.  It  is  purer  in  some  than  in  others;  thus,  for 
instance,  among  the  Hebrews  in  comparison  with  Aryans,  or 
among  the  Germans  in  comparison  with  Italians.  In  like  manner, 
if  we  visit  a  prison  and  restrict  ourselves  for  instance  to  murder- 
ers (whom  I  have  studied  and  of  whom  I  can  speak  not  only  from 
knowledge  acquired  from  books,  which  is  always  incomplete,  but 
from  personal  experience)  we  can  easily  distinguish  in  the  multi- 
tude of  convicts  twenty,  thirty  or  even  fifty  very  marked  types 
of  individuals  who  (as  I  have  proved  in  my  visit  to  prisons)  must 
have  been  sentenced  for  shedding  blood.  This  fact  sufl[ices  to 
overturn  all  of  the  reasonings  of  adversaries  who  have  fixed  in 
their  minds  an  abstract  image  of  criminals  but  who  have  never 
studied  the  Uving  reality.* 

§  67.  Physiognomy  Most  Important  in  Determining  a  Criminal. 

I  should,  however,  point  out  in  this  connection  that  the  an- 
thropological criminal  type  results,  indeed,  from  a  mass  of  organic 
characteristics  but  that  the  decisive  marks  are  the  lines  and  ex- 
pressions of  the  physiognomy.  The  anomalies  of  the  structure  and 
osseous  form  of  the  cranium  and  of  the  body  constitute  the  com- 

^  Topinard,  "Elements  d'anthropologie  generale"  (Paris,  1885),  p.  191. 

^  Lombroso,  "Prefazione  alia  Vedizione"  (Turin,  1897),  I,  VI. 

'  Let  it  not  be  said  that  in  entering  a  prison  we  already  have  fore-knowledge 
that  we  have  to  do  with  criminals.  For  not  only  has  the  objection  no  force  in  view 
of  the  fact  that  it  is  possible  by  external  characteristics  alone  to  distinguish  the 
assassins,  for  instance,  from  all  the  other  criminals;  but  also  because,  even  in 
the  study  of  normal  persons,  I  have  had  a  striking  experience.  I  have  already  re- 
ferred to  my  examination  of  soldiers,  one  by  one,  where  a  single  one  presented  the 
very  clean-cut  type  of  the  murderer  (retreating  forehead,  enormous  jaws,  cold  ex- 
pression, earthy  pallor,  thin  lips) .  After  expressing  my  opinion  to  the  military  sur- 
geon who  accompanied  me,  I  heard  its  confirmation  by  the  soldier  himself  when 
he  said  that  he  had  been  convicted  of  a  murder  committed  in  his  infancy. 


88  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  58 

plement  of  the  central  nucleus  which  is  the  face.  And  there 
again  certain  traits  are,  according  to  my  experience,  at  least, 
more  characteristic  than  others,  viz:  the  eyes  and  the  jaw.  By 
these  two  features,  especially  in  well-marked  cases,  I  am  able  to 
distinguish  the  sanguinary  delinquent  from  every  other.  Thus 
the  simple  thief,  who  uses  cunning  but  avoids  bloodshed  and 
violence,  can  be  distinguished  from  the  armed  robber  who  in 
case  of  necessity  does  not  shrink  from  murder  and  who,  in  spite  of 
the  similarity  of  crime  and  motive,  constitutes  an  anthropological 
type  very  different  from  that  of  the  simple  thief.  I  do  not  pretend 
however  that  other  observers  like  Lombroso  and  Marro  cannot 
distinguish  (by  means  of  characteristics  quite  reliable  and  con- 
vincing out  of  their  wider  experience)  the  authors  of  rapes,  typical 
thieves,  and  many  other  cases.  What  I  insist  upon  is  the  pre- 
dominant value  of  the  face  in  the  diagnosis  of  the  criminal  type, 
since  by  anomalies  of  the  skull  and  skeleton  alone,  one  can  only 
distinguish  the  degenerate  or  the  abnormal  man  in  general  from 
the  normal,  but  cannot  by  these  indications  alone  distinguish  the 
criminal  from  other  degenerates.^ 

§  68.  Objections  to  the  Determination  of  a  Criminal  Type. 

Naturally  the  obvious  types  are  in  the  minority  in  every  series 
of  delinquents.     There  are  two  reasons  for  this,  which  give  an 

*  Sergi,  "Le  degenerazioni  umane,"  p.  116,  while  asserting  from  his  own  expe- 
riences, the  existence  of  a  criminal  type,  remarks  that  one  should  say  rather  "crim- 
inal physiognomy,"  as  Lombroso  himself  often  uses  that  expression  in  the  sense  of 
type.  Nevertheless,  Sergi  makes  an  inexact  observation  in  this  connection  in 
speaking  of  the  data  of  Marro  on  the  authors  of  assaults  ("blessures,"  "feriture"), 
who  presented  to  him  (as  to  me)  less  distinct  characteristics  than  those  of  mur- 
derers. "Did  he  (he  says)  who  has  simply  inflicted  a  wound  stop  at  that,  either 
because  he  did  not  wish  to  sink  his  poignard  deeper  or  because  he  only  wished  to 
pierce  the  arm  and  not  the  intestines  or  heart.'  No:  the  author  of  a  wound  is  an 
assassin  who  did  not  succeed  in  killing  the  man  he  stabbed  and  he  should  specifi- 
cally have  the  marks  of  the  assassin."  And  yet  he  has  not  these  marks,  and  it  is 
natural  that  he  should  not  have  them,  because  the  author  of  a  wound,  if  not  dis- 
tinguishable from  homicides,  is  profoundly  distinguishable  in  the  generality  of 
cases  from  the  assassin,  for  the  latter  is,  as  a  general  rule,  a  bom-homicide  while 
the  other  is  a  homicide  by  occasion  if  he  be  not  at  most  simply  a  violent  man  who 
strikes  without  murderous  intent  in  a  quarrel,  or  while  gambling,  or  when  drunk, 
etc.;  and  that  is  why  he  is  less  abnormal  than  the  bom-assassin. 

Apropos  of  the  criminal  type,  Virgilio,  "Passanante  e  la  natura  morbosa  del 
delitto"  (Rome,  1888),  pp.  61,  62,  63,  125  also  remarks  that  an  anthropometrical 
type  of  criminal  does  not  exist  (and  no  one,  as  far  as  I  know,  has  asserted  that  it 
does)  in  the  sense  that  the  anthropometrical  data  alone  could  suflSce  in  its  deter- 
mination; but  he  acknowledges  and  explicitly  asserts  the  existence  of  the  criminal 
type  based  in  anomalies  of  conformation  and  physiognomic  characteristics. 


§58]  FUNDAMENTAL  OBJECTIONS  TO  DATA  89 

opportunity  for  reply  to  the  principal  logical  objections  that  are 
raised  against  the  existence  of  the  criminal  type:  1st:  It  is  said 
that  as  the  type  is  the  sum  of  characteristics  and  as  crime  is  not 
exclusively  the  effect  of  biological  factors,  it  is  natural  that  in  a 
great  many  individuals  these  characteristics,  either  as  the  con- 
sequence of  other  biological  influences,  such  as  the  central  nervous 
influences  in  opposition  to  the  external  conformation,  or  as  the 
effect  of  environment,  may  not  be  accumulated  and,  hence,  present 
an  indistinct  type.  In  this  very  case,  in  reply,  I  repeat,  less  evi- 
dence is  not  the  same  as  less  existence  and  is  only  the  effect  of 
other  disturbing  causes.  2d:  It  is  objected  that  the  criminal 
type  is  not  met  with,  in  the  same  frequency  in  all  the  anthropo- 
logical categories  of  born-criminals.  Now,  whilst  in  criminals  by 
occasion  or  by  the  frenzy  of  passion,  who  are  at  the  opposite  ex- 
treme, the  anthropological  criminal  type  either  does  not  exist  or 
is  met  with  less  often  precisely  because  in  them  crime  is  determined 
in  a  lesser  proportion  by  the  biological  factor  and  determined  in 
a  greater  proportion  by  the  action  of  the  physical  and  social 
medium,  as,  for  example,  in  the  three  typical  degrees  of  the  man 
who  has  simply  inflicted  wounds  (in  a  quarrel  and  without  specific 
intent  to  kill),  of  the  homicide  by  occasion,  and  of  the  assassin  by 
congenital  tendency.  The  specious  objections  raised  against  the 
existence  of  the  criminal  type  are  reducible  principally  to  the 
statement  that  the  percentage  of  each  of  the  critical  and  physiog- 
nomic characteristics  is  slight  and  almost  always  below  fifty  per 
cent,  so  that  it  does  not  prove  the  existence  of  the  type  which 
ought  to  result  from  say  a  proportion  of  seventy,  eighty,  or  ninety 
per  cent. 

And  if  Lombroso  himself  says  that  a  criminal  type  is  ob- 
served in  only  forty  cases  out  of  a  hundred,  how  can  one  assert 
its  reality.?  Would  one  say  brachy cephalic  type,  if  sixty  per  cent, 
of  the  subjects  examined  were  dolicocephalic?  This  is  only  an 
equivocation  and  it  comes  from  forgetting  that  in  the  mass  of 
criminals  there  is  a  great  number  who  are  only  criminal  by  oc- 
casion, who  do  not  present  a  well-defined  criminal  type,  and  who, 
in  a  few  cases  only,  do  show  it  in  an  attenuated  form  (such  as 
those  who  have  shed  blood,  who  have  inflicted  blows  and  knife 
wounds,  and  homicides  by  occasion  as  compared  with  assassins). 
Hence  the  type  is  in  fact  in  a  minority,  if  one  observes  the  whole 
series  of  all  classes  of  delinquents.  But  if  one  should  examine  a 
hundred  born-assassins  on  the  one  hand,  and  the  same  number  of 


90  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  58 

simple  rogues  on  the  other,  it  is  certain  that  the  criminal  type  of 
the  murderer  would  be  found  almost  without  exception  among  the 
first  and  never  among  the  second,  unless  these  were  murderous 
rogues  —  something  rarely  encountered.  Of  this  I  have  given 
some  proofs  in  establishing  the  greater  frequency  of  anomalies  in 
a  series  of  recidivists  compared  with  a  series  of  non-recidivists 
born  in  the  same  provinces.  It  must  be  conceded  that  Lombroso 
himself  has  to  some  extent  fallen  into  this  mistake;  and  really,  if 
he  had  more  faithfully  discriminated  among  the  categories  of 
criminals  he  studied,  he  would  have  obtained  results  much  more 
convincing  and  harmonious  than  those  admittedly  striking  ones 
which  he  has  published.  This  is  certainly  the  most  fruitful  task 
that  the  criminal  anthropologist  can  henceforth  take  up,  because 
science  itself  is  obedient  to  the  evolutive  law  of  successive  differen- 
tiations arising  from  an  anterior  state  of  indistinct  homogeneity. 
In  truth,  when  homogeneous  categories  of  criminals  have  been 
studied,  the  results  have  been  much  more  significant.  Thus 
Penta,  having  examined  among  galley  convicts  four  hundred 
"dangerous  criminals,"  who  therefore  belonged  to  the  category 
of  hereditary  delinquents,  found  that  only  three  per  cent,  of  the 
subjects  were  free  from  anomalies  while  ninety-four  per  cent, 
presented  three  or  more  anomahes  united.^  Moreover,  the  per- 
centage figures  are  incontestably  reinforced  by  the  following  fact : 
assuming  that,  were  it  only  once  in  a  thousand  times,  I  could  tell 
you  first  what  are  in  my  opinion  the  characteristics,  especially  of 
face  and  skull,  which  denote  the  born-murderer  and  that  I  then  in 
a  prison  could  point  out  an  individual  possessed  of  them  who  had 
been  convicted  of  murder,  this  fact  alone  would  sufiice,  against 
all  of  the  quibbles  of  academic  critics,  to  demonstrate  the  exis- 
tence of  the  criminal  type.  Now,  I  repeat,  that  I  have  had  dozens 
of  experiences  of  this  kind  of  which  I  am  ready  to  make  as  many 
more  tests  as  may  be  desired;  and  this  argument  will  be  the  most 
persuasive,  as  it  already  is,  with  more  or  less  accuracy,  for  the 
judges  in  their  courts,  and  for  the  police  in  the  detection  of  the 
criminal  in  society. 

^  Penta,  "Le  degenerazioni  criminali,"  in  the  "Revista  d'igiene,"  1890. 


§59]  FUNDAMENTAL  OBJECTIONS  TO  DATA  91 

§  69.  Objection  Based  on  the  Alleged  Development  of  the  Thief  into  the 

Murderer. 

In  this  connection  I  recall  also  an  objection  that  Dubuisson ' 
first,  and  afterwards  Joly  ^  attempted  to  oppose  to  the  existence 
of  the  criminal  type.  If  the  assassin  and  the  thief  present  an- 
thropological types  of  such  characteristic  difference  "how  can  we 
explain  the  fact,  which  seems  quite  certain,  that  the  greater  part 
of  delinquents  begin  with  theft  and  finish  with  murder?  Must  it 
be  admitted  that  the  thief  changes  his  mask  in  becoming  a  mur- 
derer.'' "  This  is  the  result  of  reasoning  about  delinquents  without 
knowing  them  by  direct  observation.  It  is  not  a  fact  that  the 
majority  of  delinquents  begin  as  thieves  and  finish  as  murderers. 
The  famous  career  of  crime  in  which  Farinacio  already  found  an 
argument  in  favor  of  Beatrice  Cenci  has  not  truth  except  in  a 
special  category  of  delinquents,  the  habitual,  as  I  shall  later  ex- 
plain; and  even  among  such  it  is  only  by  way  of  exception  that 
the  thief  becomes  a  murderer.  Criminal  psychology,  and  I  have 
furnished  the  proofs  in  "Omicidio,"  estabUshes  the  fact  that 
thieves  according  to  their  repugnance  or  non-repugnance  to 
bloodshed  form  two  profoundly  different  classes.  The  simple 
thief,  confidence  man,  or  fraudulent  promotor,  may  by  habit 
reach  the  point  of  turbulence  ("effraction")  or  brigandage,  but  it 
is  with  difficulty  that  he  reaches  the  point  of  homicide  committed 
solely  and  principally  to  despoil  his  victim.  He  may  in  certain 
cases  commit  a  murder  but  it  is  to  insure  his  impunity  and  he  is 
impelled  to  it  by  the  cries  and  the  resistance  of  his  victim.  Quite 
the  reverse,  the  sanguinary  thief  ("I'escarpe"  of  the  French 
argot)  is  only  a  species  of  assassin  and  he  is  such  by  congenital 
tendency  which  in  most  cases  is  shown  suddenly  before  adult  age 
but  which  may,  as  a  consequence  of  favorable  exterior  circum- 
stances, never  be  actualized  or,  if  at  all,  only  much  later.  Thus  it 
is  not  a  thief  who  has  changed  his  type  but  that  he  really  had  the 
homicide  type  before  he  committed  the  assassination.  This  is 
exactly  the  case  when  I  find  a  convict  in  the  prisons  who  shows 
the  characteristics  of  the  murderer  and  when  I  am  told  that  he  has 
been  convicted  of  theft.  The  thought  immediately  occurs  to  me 
that  this  must  be  a  quite  different  thief  from  the  offensive  pick- 
pocket;  and  very  often,  if  I  push  my  inquiry,  I  am  told  that  he 

^  Dubuisson,  "  Throne  de  la  responsibilite,"  A.  A.  C.  (January,  1889),  p.  37. 
*  75.  Jdy,  "Le  crime"  (Paris,  1888),  p.  179. 


92  DATA  OF  CRBONAL  ANTHROPOLOGY  [§60 

has  not  only  been  convicted  of  theft  but  also  for  assaults,  and  even 
for  murder. 

§  60.   Objection  that  the  Anthropological  is  a  Professional. 

Other  objections  to  the  anthropological  criminal  type  have  been 
made  which  bear  on  its  signification  and  origin  rather  than  on 
its  existence.  Thus  Tarde,  first,  and  others  subsequently  have 
said  that  the  criminal  type  is  perhaps  a  "professional  type"  of 
which  the  characteristics  distinguishing  the  delinquent  from  the 
normal  man,  are  due  only  to  the  kind  of  life  and  the  kind  of  me- 
dium. And  in  this  sense  delinquents,  hke  artists,  sailors,  hunters, 
soldiers,  and  lawyers,  fonn  a  type  by  themselves.^  Topinard 
in  the  same  sense  makes  a  further  distinction.  There  are  "meso- 
logical  types"  in  general  (mountain  and  malarial  types),  and  there 
are  "social  types"  produced  by  the  impress  of  difference  of  occupa- 
tions, habits,  and  life.  All  of  these,  however,  are  acquired  and 
secondary  types  of  "accidental  collectivities,"  quite  different 
from  the  natural  types  of  family,  race,  or  species;  the  latter  are 
transmissable  by  heredity,  the  former  are  not.  The  collective 
types  do  not  survive  the  generation  which  has  seen  their  birth. 
If  the  conditions  remain  the  same  they  are  repeated  but  they  do 
not  perpetuate  themselves. ^  Now  among  the  characteristics 
which  constitute  the  anthropological  criminal  type,  some  are 
acquired,  like  tattooing,  gait,  sly  expression  of  face,  language,  and 
scars,  but  some  are  congenital,  like  the  anomalies  of  the  cranium, 
of  the  skeleton,  of  the  physiognomy,  the  physiological  anomalies.^ 
One  can  understand  how  the  habit  of  crime  or  a  profession  can 
impress  upon  the  individual,  even  in  the  anatomical  order,  some 
of  these  acquired  and  truly  professional  marks  as  the  consequence 
of  the  more  frequent  use  of  an  organ,  for  instance  the  right  arm 

^  Tarde,  "La  criminalite  compar^e,"  p.  51-53. 

*  Topinard,  Rev.  d'anthrop.  (15  November,  1887),  p.  661. 

'  Garofalo  maintains  that  in  the  determination  of  the  criminal  type,  predom- 
inance should  be  given  to  the  psychic  traits.  I  agree  and  I  have  agreed  with  him 
on  this  point  especially  when  there  is  question  of  establishing  to  what  anthropo- 
logical category  a  particular  delinquent  belongs  and  of  establishing  the  measures 
of  social  defense  to  be  taken  against  him.  But  the  existence  of  the  anatomical 
and  physiognomic  type  is  beyond  dispute  and  even  in  the  practical  classifi- 
cation of  each  delinquent  (as  Bronardel  also  said  at  the  Congress  of  Paris,  "  Actes," 
p.  169),  all  of  his  organic,  psychic,  and  social  characteristics  should  concur  as  they 
concur,  for  example,  in  every  medico-legal  expert  question  with  resi>ect  to  the  crim- 
inal insane.  See  Garofalo,  report  to  the  Congress  of  Criminal  Anthropology  of 
Paris,  A.  A.  C.  (May,  1889),  and  in  the  same  sense  see  Zuccarelli,  "L'anomalo," 
Nos.  5-6  (Naples,  1889),  pp.  138-161. 


§60]  FUNDAMENTAL  OBJECTIONS  TO  DATA  93 

by  the  sculptor,  the  hand  in  the  thief,  the  third  frontal  circum- 
volution in  a  great  orator  (in  the  brain  of  Gambetta  for  example),^ 
provided,  of  course,  that  there  is  a  biological  predisposition.  And 
consequently  the  idea  of  a  professional  type,  not  however  in  an 
absolute  sense,  is  well-founded,  when  there  is  discussion  of  certain 
delinquents  by  occasion,  who  have  subsequently  become  habitual 
delinquents,  for  the  reasons  which  I  have  given  elsewhere  and 
which  I  will  state  later.  But  that  the  kind  of  life,  the  profession, 
should  be  able  to  give  marks  foreign  and  even  contrary  to  the 
organic  and  psychic  activity,  such  as  the  enormous  jaws  and  fierce 
expression  of  murderers  (when  it  would  really  be  to  the  interest 
of  every  delinquent  to  have  a  physiognomy  without  any  signif- 
icance) or  the  retreating  forehead  of  thieves,  is  inadmissable,  little 
as  one  may  reflect  on  it.  It  is  certain  that  the  profession  of 
hunter,  soldier,  or  sailor  brings  about  certain  acquired  marks  in 
the  general  gait,  the  complexion,  and  in  certain  muscles.  This 
has  been  shown  by  the  brilliant  art  of  Meunier  for  the  Belgian 
workmen  and  of  Orsi  for  the  Italian  peasants.^  But  in  neither  the 
hunter,  the  sailor,  nor  the  miner  is  the  twelfth  vertebra  lacking 
as  Tenchini  found  it  often  lacking  in  criminals.  The  forehead 
does  not  become  more  or  less  vast  nor  the  cranium,  microcephalic 
or  oxycephalic  as  the  result  of  the  profession.  Further,  as  Garo- 
falo  has  very  accurately  observed,  when  we  have  a  delinquent 
who  from  infancy  is  given  up  to  crime  and  not  only  to  theft  (which 
can  be  the  consequence  of  congenital  tendency  or  the  influence 
of  the  family  or  surroundings)  but,  for  instance,  to  atrocious 
murders,  then  in  what  way  can  the  kind  of  life  or  the  profession 
contribute  in  impressing  upon  him  that  criminal  type  of  which  I 
have  given  examples  in  the  photographs  of  child-murderers  pub- 
lished elsewhere.''  ^     Finally,  Tarde   himself  makes   certain   ad- 

^  Manouvrier,  "Cerveaux  de  Gambetta  et  de  Bertillon,"  in  the  "Bulletin  de 
la  Society  psycholo-physiologique  de  Paris"  (1889),  IV;  Laborde  "Leon  Gambetta" 
(Paris,  1898). 

^  See  "The  Principal  Works  of  MSunier,"  in  the  "Emporium"  (September, 
1898). 

'  As  a  typical  example  of  congenital  criminality,  I  shall  reproduce  from  a  reli- 
able source,  a  case  of  remarkably  precocious  criminality,  taking  it  from  Fallot  and 
/Jo6ioZis,  A.  A.  C.  Arch,  d'antr.  crim.  (July,  1896).  The  spouses  X  .  .  .  had  a  little 
girl  of  seven  years,  one  of  two  and  a  half,  and  a  boy  of  six  months.  On  the  25  Octo- 
ber, 1895,  during  the  absence  of  the  parents,  the  older  girl,  seeing  that  the  younger 
had  urinated  on  the  floor,  scolded  her  saying  that  she  would  tell  her  mother.  Im- 
pelled by  this  threat  the  child  (two  years  and  a  half  old !)  took  up  a  long  knife,  a 
kind  of  butcher  knife,  which  was  on  the  table;  and  then  as  the  sister  stooped  to 
wipe  up  the  urine,  the  child  approached  and  with  all  her  power  plunged  the  knife 


94  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  60 

missions  which  destroy  all  reality  of  a  professional  type,  taken  in 
a  sense  opposed  to  the  anthropologico-criminal  type,  and  after 
him  Topinard,  by  denying  the  hereditary  transmissibility  of  the 
professional  marks,  gives  it  the  "coup  de  grace."  Tarde  writes:  ^ 
"  My  thought  should  not  be  misunderstood:  ...  I  do  not  limit  my- 
self to  simply  saying  that  there  are  muscular  or  indentical  nervous 
habits  born  by  imitation  from  the  practice  of  a  trade  and  cap- 
italized into  acquired  physical  traits  overlying  the  innate  traits. 
Further,  I  am  persuaded  that  certain  inborn  anatomical  charac- 
teristics, of  an  order  exclusively  vital  and  not  social  in  their  causes, 
are  part  also  of  the  average  marks  pecuhar  to  each  great  profes- 
sion, if  not  to  each  great  social  class."  And  elsewhere  he  repeats: 
"Every  great  social  or  anti-social  profession  attracts  those  who 
have  certain  dispositions,  if  the  careers  are  free;  and  if  they  are 
closed  by  castes,  then  there  is  an  accumulated  transmission :  thus 
it  is  that  nobles  are  born  courageous,  or  Hebrews  bankers."  ^  This 
amounts  to  saying,  and  it  is  perfectly  true,  that  a  given  man 
becomes  a  butcher  because  he  has  congenital  characteristics  which 
predispose  him  to  that  calling,  and  that  another  individual  has 
predispositions  to  become  a  surgeon,  or  another,  an  artist;  and 
the  same  is  true  of  the  delinquent.  We  do  not  ask  anything  more 
for  the  existence  of  the  anthropological  criminal  type.  There  is, 
indeed,  the  mediocre  artist  who  might  as  well  have  been  a  grocer 
and  who  in  vain  affects  in  his  profession  certain  mannerisms  like 
those  of  born-artists,  but  who  can  never  borrow  from  them  the 
congenital  marks,  for  example  those  of  a  genial  physiognomy.  In 
the  same  way  a  stupid  person  who  passes  his  life  in  study,  may 

into  the  right  part  of  the  thorax.  Then  she  tranquilly  put  the  knife  back  on  the 
table  where  she  had  found  it.  The  wound  was  eight  centimeters  long,  penetrating 
almost  to  the  ribs.  If  this  child  was  not  a  bom-delinquent,  I  do  not  know  of  any 
use  in  the  observation  of  facts.  The  portrait  of  the  child,  published  in  the  "Ar- 
chives," shows  an  enormous  development  of  the  frontal  sinus,  with  a  very  large 
head  (probably  hydrocephalous),  very  detached  ears,  and  a  savage  expression  of 
the  physiognomy.  "Her  character,"  the  mother  said  to  the  doctors,  "is  extremely 
violent.  She  is  subject  to  frequent  rages  [Tiere  is  the  criminal  impulsiveness]. 
She  never  cries.  After  stabbing  her  sister  she  showed  no  emotion  and  no  regret. 
She  is  unusually  stubborn."  The  physicians  add:  "Our  observations  confirm 
this  statement  by  the  mother.  At  the  first  glance  one  is  struck  with  the  grave 
and  serious  expression  of  this  child's  face.  Her  look  is  sad  and  serious  and  she 
frowns  often,  which  adds  to  her  quasi-ferocious  expression."  This  case  (and  how 
many  others  there  are!)  has  more  weight  in  proving  the  existence  of  the  criminal- 
bom  and  of  the  criminal  type  than  a  volume  of  arguments.  See,  for  instance, 
Gissey,  "Un  omicida  dodicenne,"  S.  P.  (September,  1898). 

1  Tarde,  "La  criminalite  comparee,"  p.  51. 

'  Tarde,  " Criminologie,"  in  the  "Revue  d'anthropologie"  (September,  1888). 


§61]  FUNDAMENTAL  OBJECTIONS  TO  DATA  95 

assume  certain  purely  superficial  characteristics  of  a  real  savant 
such  as  the  scholarly  stoop,  near-sightedness,  or  pallor;  but  do 
what  he  will  he  can  never  have  the  spacious  forehead,  the  profound 
eye,  or  the  intelligent  physiognomy,  if  he  has  not  received  these 
gifts  from  Mother  Nature.  Similarly,  there  is  the  dehnquent  who 
is  delinquent  rather  through  the  complicity  of  environment  than 
through  congenital  tendency  and  he  may  acquire,  if  he  becomes  an 
habitual  delinquent,  certain  professional  characteristics  appro- 
priate to  his  anti-social  calling,  which  will  constitute  in  him  the 
convict  type  ("penitentiare")  observed  by  Gautier  when  he  spent 
some  time  in  prison  as  the  consequence  of  a  political  conviction.^ 
But  I  repeat,  this  does  not  signify  that  the  born-criminal,  pro- 
vided from  birth  with  certain  radical  anatomical  and  physiognomic 
traits,  is  a  professional  type  also.  One  cannot  understand  how 
Topinard  denies  the  hereditary  transmission  of  professional 
traits,  when  everybody  knows  families  whose  members  from  ten- 
derest  years  possess  a  congenital  professional  type.  Some  writers, 
also,  who  have  eagerly  seized  upon  the  idea  of  the  professional 
type  because  of  the  ordinary  prejudice  which  would  make  crime 
a  purely  and  exclusively  social  phenomenon,  have  nevertheless 
defended  the  hereditary  transmission  of  professional  character- 
istics, against  Topinard. 

§  61.  Anthropological  Criminal  Class  —  a  Restatement. 

It  is  evident  therefore  that  the  reality  of  the  anthropological 
criminal  type  which  we  maintain  for  the  criminal-born  is  confirmed 
by  the  very  ones  who  would  wish  to  deny  it.  That  a  particular 
child-murderer  should  have  inherited  from  his  grandparents  or 
his  parents  certain  marks  of  the  criminal  type  for  one  reason  or 
another,  together  with  atavic  or  pathological  or  professional  anom- 
alies, is  of  little  importance,  provided  that  the  absolutely  unde- 
niable fact  of  the  congenital  criminal  type  in  the  anthropological 
sense  remains,  that  is,  a  physio-psychic  predisposition  to  such  or 
such  a  form  of  criminality,  which  the  conditions  of  the  telluric  and 
social  medium  can  (as  often  happens)  bring  to  an  effective  realiza- 
tion, but  which  they  can  also  (although  the  case  is  rare)  prevent 
from  being  realized.  Resolving  this  "quaestio  vexata"  into  its 
simplest  terms,  we  contend  that  first  of  all  the  term  should  be 
understood  to  mean  the  individual  in  whom  the  anomalies  or 
atavic  stigmata,  degenerative  and  pathological,  are  met  with  in. 

»  Gautier,  "Le  monde  des  prisons,"  in  the  A.  A.  C.  (1888),  pp.  417  et  seq. 


06  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  61 

greater  number  than  in  non-delinquent  individuals  of  the  same 
social  classes  and  of  the  same  ethnic  origin.  This  truth,  which 
is  the  fundamental  discovery  of  criminal  anthropology,  is  now 
no  longer  contested  by  any  one  (because  it  is  a  question  of  positive 
facts),  not  even  by  those  who  make  theoretical  objections  to  the 
idea  of  the  criminal  type.  In  the  second  place,  we  maintain,  and 
this  is  the  disputed  point,  that  this  greater  number  of  anomalies 
in  the  criminal  type  (bom-criminal)  constitutes  a  real  personal 
predisposition  to  crime,  in  like  manner  as  the  sum  of  certain  other 
well-known  organic  stigmata  give  the  type  of  the  born-consump- 
tive, that  is,  the  individual  predisposed  by  heredity  to  tuberculosis.^ 
Now,  some  men  will  deny  the  existence  of  this  clinical  type,  be- 
cause a  born-consumptive  fortunate  enough  to  be  rich  and  able  to 
live  in  an  hygienically  favorable  environment  reaches  an  advanced 
age  without  dying  of  tuberculosis.  It  is  the  same  with  the  crim- 
inal type.  The  individual,  who  from  birth,  by  hereditary  trans- 
mission (as  has  been  shown  a  thousand  times  in  the  alternations 
of  alcoholism,  insanity,  suicide,  moral  eccentricity,  delinquency, 
and  sterility,  in  certain  famiUes  tainted  with  degeneracy)  carries 
in  his  organic  and  psychic  constitution  this  junction  of  anomalies, 
is  predisposed  to  crime.  He  may,  if  he  has  the  good  fortime  to 
live  in  an  exceptionally  favorable  medium,  die  without  ever  having 
violated  the  penal  code;  but  he  will,  on  the  contrary,  fall  into 
natural  criminality  (anti-human  criminality  and  not  merely  such 
as  consists  of  contraventions  or  political  heterodoxy)  if  the  con- 
ditions of  his  environment  make  his  struggles  for  existence  diffi- 
cult.^    It  is  conceded  that  without  the  complicity  of  the  medium 

^  I  made  this  statement  at  the  Geneva  Congress,  where  my  declarations 
on  this  matter  dissipated  the  clouds  of  misunderstanding  and  appeared  novel  to 
those  who  were  unwilling  to  recall  that  I  had  constantly  reiterated  them  since 
1880. 

*  This  predisposition,  or  lessened  physico-psychic  resistance  to  the  stimula- 
tion of  the  medium  towards  crime,  is  recognized  even  by  our  critics,  when  they  are 
not  professedly  discussing  the  criminal  type.  For  instance,  by  Magtian,  "Actes 
du  congres  de  Paris"  (Lyon,  1890),  p.  58.  "The  infinite  degrees  of  mental  state 
in  degenerates  present  the  following  modalities:  a  predominance  of  the  intellectual 
faculties,  defective  moral  condition,  criminal  degenerates,  etc."  Bu^chau,  also, 
" Gegenwartige  Standpimkt  der  Kriminal  anthropologic"  (Cassel,  1893),  admits 
that  there  exists  in  certain  individuals  "a  lesser  psychic  resistance  which  may  show 
itself  by  a  nervous  and  psychic  disease  or  precisely  by  crime."  To  the  same  effect 
is  Legrain,  "De  I'alcoolisme  au  point  de  vue  de  la  degeneration,  de  la  morale  et 
de  la  criminalite,"  "Actes  du  Congres  de  Geneve"  (1897,  p.'  162).  This  is  why 
Drill  at  the  Congress  of  Paris  (A.  C.  A.  C.  p.  162)  said  that  the  organic  factor  did 
not  of  itself  suffice  to  engender  delinquency  without  the  complicity  of  the  me- 
dium, although  producing  a  more  or  less  marked  predisposition  to  delicts  in  general 

V 


§61] 


FUNDAMENTAL  OBJECTIONS  TO  DATA  97 


the  born-delinquent  does  not  commit  crime,  although  the  slightest 
exterior  impulsion  is  enough  to  make  him  yield  to  his  physio- 
psychic  predisposition.  But  in  the  meantime  we  notice  that  he 
does  show  the  criminal  type  and  we  say  that  "heredity  is  a  law 

and  to  their  varieties  in  particular.  .  .  a  predisposition  without  which  the  condi- 
tions of  the  medium  would  not  be  sufficient  to  determine  the  crime," 

Even  at  the  Congress  of  Brussels,  where  it  has  been  said  the  theory  of  the  bom- 
criminal  was  killed  and  buried  under  the  blows  of  syllogisms,  the  fact  is  (as  stated  by 
Van  Hamel,  p.  270)  that  the  struggle  was  altogether  "between  classical  jurists  and 
anthropologists."  Houze  and  Varnots,  while  declaring  themselves  adversaries  of  the 
criminal  type,  yet  declared  that  "they  joined  without  reserve  in  the  thesis  which 
traces  the  functional  origin  of  crime  to  the  tyranny  of  the  organism"  (Actes, 
Brussels,  1893,  p.  122)  and  formulated  the  first  conclusion  of  their  report,  thus: 
"The  anatomical  type  designated  by  Lombroso  as  belonging  to  the  bom-criminal 
is  a  composite  hybrid  product,  uniting  characteristics  drawn  from  different  sources. 
(Eh!  What  difference  does  that  make?)  It  is  therefore  a  real  (?)  type.  Even 
admitting  that  the  type  exists,  it  becomes  real  only  in  the  minority  of  delinquents  (but 
this  is  precisely  because  the  criminal-bom  are  in  the  minority  in  the  number  of 
delinquents).  It  must  therefore  be  rejected"  (p.  126).  And  on  the  contrary  I 
say  that  it  must  be  maintained  for  the  simple  reason  that  it  exists  and  is  met 
with. 

Liszt  himself,  who  has  made  some  reputation  in  Germany  by  drawing  on  the 
theories  of  the  positive  school  with  eclectic  dilutions  a  few  years  ago  and  without 
then  indicating  their  source,  finally  notes  that  social  circumstances  determine  the 
movement  of  criminality  "by  their  influence  on  the  ascendants  of  the  delinquent 
and  at  the  same  time  on  his  innate  personality"  (A.  C.  A.  C,  Brussels,  1893,  p. 
92). 

Better  still :  Tarde,  the  great  master  of  argument  against  the  criminal  tj^jc,  since 
he  says  there  are  no  "clean-cut  and  indisputable  anatomical  characteristics  appro- 
priate to  disclose  the  criminal "  (does  he  pretend  that  the  criminal  type  in  order  to 
exist  should  have  two  noses  and  four  eyes?)  admits  that  "we  are  not  on  that  account 
prevented  from  affirming  the  existence  of  organic  and  physiological  predispositions 
to  crime,"  "Actes  du  Congr.  de  Paris  (Lyon,  1893),  p.  199.  And  the  same  Tarde, 
when  he  is  not  bestride  the  enchanted  broom  of  abstract  syllogisms,  and  when  he 
holds  to  the  description  of  realities  which  he  has  seen  as  a  criminal  judge  ("juge 
d'instruction"),  speaks  of  an  assassin  whom  he  unmasked  in  these  terms:  "Among 
these  workmen  I  saw  a  young  and  vigorous  fellow  vrith  the  physiognomy  of  a  hyena 
and  a  sinister  and  hard  look."  "Etudes  de  psychologic  sociale"  (Paris,  1898),  p. 
229. 

This  is  what  may  be  called  an  imconscious  revelation  of  the  criminal  type  by 
a  man  who  in  words  is  one  of  the  rudest  of  adversaries,  and  naturally  if  he  were 
asked  to  admit  it  he  would  at  once  build  up  syllogisms  for  the  construction  of  a 
gratuitous  denial.  This  is  what  he  did  in  the  session  of  18  Nov.  1896,  of  the  Societe 
des  prisons  at  Paris.  The  report  of  Motel  on  the  Congress  of  Geneva  was  under 
discussion.  The  advocate  Martin,  in  support  of  our  theories,  related  a  visit  he  made 
to  the  House  of  Correction  at  Douaires  and  the  fact  observed  by  the  director  "that 
the  physiognomy  of  a  great  number  of  these  delinquents  remained  repulsive  in 
spite  of  all  the  efforts  made  for  their  improvement."  Tarde  said:  "As  M.  the 
advocate  Martin  has  remarked,  there  is  a  bestial  type:  the  forehead  is  retreating, 
the  jaw  is  often  heavy.  But  (and  here  is  the  reasoning  of  a  prejudiced  man)  if  you 
take  the  most  guilty  among  these  juveniles,  those  who  have  committed  the  most 
serious  crimes,  you  will  find  that  they  do  not  always  present  the  most  serious 


98  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  62 

which  manifests  itself  by  a  tendency."  ^  Further,  even  among 
domestic  animals,  there  are,  as  Corre  remarks,  real  born-delin- 
quents, well-known  to  all  trainers,  that  is,  individuals  that  are 
refractory  to  all  discipline,  "individuals  that  are  unconquerable, 
sly,  insubordinate."^  Similarly,  in  insanity,  there  is  the  physio- 
psychic  type  of  the  "hereditary  insane,"  i.  e.,  the  man  predis- 
posed to  insanity.  And  yet,  as  Maudsley  '  has  said,  many  persons 
with  the  taint  of  hereditary  insanity,  never  become  violent  and 
live  a  sufficiently  regular  hfe,  if  fortunately  they  meet  with  excep- 
tionally favorable  circumstances  and  conditions.  Although  in 
insanity  social  causes  also  have  great  importance,  yet  no  one  any 
longer  denies  (and  this  was  not  the  fact  in  the  beginning  of  modem 
psychiatry)  the  hereditary  predisposition  to  insanity  and  the 
"insane  temperament."  If  one  comprehends  the  criminal  type 
thus,  as  the  ItaUan  school  has  always  so  comprehended  it,  of  what 
importance  are  syllogistic  objections,  except  as  indices  of  veiled 
spiritualism  hostile  to  the  admission  of  this  proof  of  the  depend- 
ance  of  the  physical  on  the  moral,  or  as  ill-founded  preoccupations 
of  metaphysical  sociaUsm  which  shrinks  from  the  affirmation  that 
crime  is  inevitable  and  fatal,  whatever  changes  may  be  brought 
about  in  the  social  medium.'*  It  is  therefore  understood  that  when 
we  speak  of  the  criminal  type  and  of  the  born-criminal,  we  mean 
the  affirmation  of  a  physio-psychic  predisposition  to  crime,  which 
in  certain  individuals  may  not  end  in  criminal  acts  (as  the  pre- 
disposition to  insanity  may  not  end  in  madness),  if  restrained  by 
favorable  circumstances  of  the  medium,  but  which,  when  these 
circumstances  are  unfavorable,  is  none  the  less  the  sole  positive 
explanation  of  the  anti-human  and  anti-social  activity  of  the 
delinquent. 

§  62.  Heredity  and  Environment. 

One  can  also  understand  that  we  assert  the  "fatal  inevitability 
of  crime"  and  that  we  also  recognize,  even  in  our  first  edition 
(1881),  in  our  theory  on  the  prevention  of  criminality  ("  sostitutivi 

anomalies."  ("Revue  penitentiare"  [^18963,  pp.  1248  and  1252.)  Tarde  made  that 
statement  without  adducing  any  proofs,  because  he  has  never  made  a  method- 
ical study  even  of  a  himdred  delinquents,  and  because  he  is  only  a  cabinet  critic, 
while  we  not  only  assert  the  contrary  but  we  prove  it  by  anthropological  researches 
in  prisons,  insane  asylums,  and  elsewhere. 

1  Pierret,  "Les  grandes  lignes  de  I'her^dit^  psychopathique,"  R.  S.  (22  May, 
1897). 

*  Corre,  "Les  criminels,"  p.  372. 

»  Maudsley,  "Responsibility  in  Mental  Disease,"  last  chapter. 
V 


§62]  FUNDAMENTAL  OBJECTIONS  TO  DATA  99 

penali"),  that  by  changing  the  environment,  influence  can  be 
exerted  (within  the  Hmits  of  individual  existence)  on  the  great 
mass  of  deHnquents  by  occasion  and  habitual  criminals,  and  in 
the  course  of  a  few  generations,  thanks  to  heredity,  on  the  class  of 
the  born-criminal  and  the  born-insane.^  Observation,  therefore, 
does  not  permit  us  to  suppose,  like  Manouvrier,  "that  the  same 
individual  may  act  in  a  thousand  different  ways  according  to  the 
influences  to  which  he  is  subject,  without  on  that  account  under- 
going any  physiological  or  anatomical  variation,"  so  that  "edu- 
cation, medium,  social  circumstances  may  turn  a  quite  honestly 
constituted  man  into  a  rascal";  although  "man  is  born  a  criminal 
just  as  a  dog  is  born  a  swimmer,  he  is  always  very  capable  of  com- 
mitting a  crime."  ^  This  is  not  true,  for  an  individual  who  has  not 
the  predisposition  to  crime  may  in  extremely  unfavorable  circum- 
stances develop  more  or  less  violent  insanity,  or  even  commit  sui- 
cide, but  he  never  becomes  a  "rascal."  One  does  not  become 
insane  at  will  nor  does  one  become  criminal  at  will.  Such,  there- 
fore, is  the  last  conclusion  on  the  undeniable  criminal  type.  While 
in  the  born-criminal  the  origin  is  almost  exclusively  biological; 
in  occasional  delinquents  who  have  become  habitual  criminals, 
the  origin  is  largely  social.  Yet  even  in  the  latter,  as  I  shall  say 
at  the  proper  time,  biological  influence  is  not  wholly  excluded. 
Occasional  delinquents,  even  in  similar  environment,  do  not  all 
become  habitual  delinquents,  because  there  are  some  among  them 
who  are  endowed  with  a  greater  biological  power  of  resistance 
to  external  crime-breeding  conditions.  This  amounts  to  saying 
that  not  only  among  delinquents  but  also  among  the  professional 
or  psychological  groups,  there  exists  in  certain  cases  a  bio-social 
type  in  which  congenital  or  acquired   characteristics  predomi- 

^  Ottolenghi,  in  tabulating  the  differences  of  sensibility  according  to  the  social 
condition,  "Archive  de  Biologic  (1895,  XIX,  101),  found  that  in  the  lower  classes 
of  society  there  is  a  minority  of  individuals  with  superior  sensibility  and  that  in 
the  higher  classes  there  are  individuals  of  inferior  sensibility  (exactly  as  there  are 
virtuous  types  among  the  unfortunate,  and  criminal  types  among  the  rich,  in 
spite  of  the  medium).  Hence,  "the  scientific  certainty  of  these  minorities  gives 
a  less  fatalistic  significance  to  the  problem  of  anthropological  inequalities,  since 
civilization  does  not  tend  to  determine  inequalities."  When  the  social  medium 
better  assures  the  development  of  every  human  personality  this  select  minority 
among  the  unfortunate  who  are  now  atrophied  by  poverty,  will  become  more  and 
more  numerous;  while  even  in  the  higher  classes  a  less  feverish  (decreasing  the 
pursuit  of  wealth)  and  a  less  parasitical  existence  will  reduce  the  frequency  of 
involutive  degeneracy. 

2  Manouvrier,  in  the  A.  C.  P.  (Lyons,  1895),  pp.  19, 155;  "La  gen^se  normal  du 
crime"  (September,  1893),  p.  144. 


100  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  64 

nate,  depending  on  whether  the  individual  is  more  or  less  pre- 
pared by  his  physio-psychic  constitution  for  a  given  profession 
or  whether  he  has  been  destined  for  it  rather  by  family  and 
social  reasons.  But  there  further  exists,  also,  a  purely  biologi- 
cal or  anthropological  type  of  delinquent,  precisely  in  the  cases 
where  the  criminal  tendencies  are  congenital  and  are  shown  from 
the  earliest  years,  together  with  radical  anatomical,  physiognomic, 
and  even  psychic  characteristics  (impulsiveness,  moral  insensi- 
bility, extraordinary  improvidence)  which  can  not  be  explained 
as  solely  produced  in  the  individual  by  habits  of  life  or  by  social 
conditions. 

§  63.   Criminal  Etiology. 

Such  is  the  conception  of  the  criminal  temperament,  which  I 
disclosed  elsewhere,^  indicating  the  means  of  establishing  a  criminal 
etiology.  This  will  be  the  practical  crowning  of  this  scientific 
work  which  in  a  few  years  has  so  brilliantly  expanded  on  its 
double  base  of  criminal  anthropology  and  criminal  sociology  and 
which,  after  garnering  such  a  quantity  of  analytical  data  that  it 
is  at  times  encumbered  by  it,  must  henceforward  use  these  data  and 
their  partial  investigations  for  a  bio-sociological  synthesis:  and 
this  will  be  the  theory  of  the  difficult  but  fruitful  art  of  social  thera- 
peutics.^ 

§  64.  Hypotheses  as  to  Nature  and  Origin  of  Crime. 

Aside  from  the  negative  opinion  of  classical  criminal  science, 
according  to  which  crime  has  no  specifically  biological  nor  social 
character,  being  only  the  fiat  of  the  individual  free  will,  criminal 
anthropologists  have  given  many  explanations  and  hypotheses 
on  the  nature  and  origin  of  delinquency.  They  can  not  be  dis- 
regarded, although  these  hypotheses  seem  to  me  often  hasty  and 
premature  and  although  they  add  nothiag  of  merit  in  scientific 
knowledge  or  practical  applicability  to  this  positive  determination 
of  the  organic  and  psychic  characteristics  in  criminals,  which  is 

1  Ferri.  S.  P.  (August,  1896). 

*  As  indications  for  this  synthesis,  see  the  monographs  of  Bossi  and  Ottolenghi 
on  two  groups  each  of  a  hundred  criminals  (Turin,  1898);  Del  Greco,  "II  terape- 
ramento  epilettico,"  in  the  "Manicomio"  (1893);  Hamon,  "La  psychologic  de 
I'anarchiste  socialiste"  (Paris,  1895);  MacDonald,  "The  Criminal-type";  and 
with  less  definiteness,  Del  Greco,  "Temperamento  e  carattere  nelle  indagini  psi- 
chiatricheedi  anthropologia  criminale,"  in  the  "Manicomio"  (1898),  p.  161,  and 
"Sulla  psicologia  della  individualita,"  in  the  "Atti  di  SocietA  Romana  d'anthro- 
pologia"  (1898),  fasc.  3. 


§64]  FUNDAMENTAL  OBJECTIONS  TO  DATA  101 

really  the  most  important  and  most  fruitful  endeavor  of  criminal 
anthropology.  Let  us  begin  by  studying  in  the  most  positive  and 
exact  way  the  different  classes  of  delinquents.  We  shall  then 
force  ourselves  to  explain  their  origin  and  nature,  —  a  synthetic 
research  which  should  always  be  preceded  by  a  persistent  analysis 
as  complete  as  possible.  In  this  we  shall  place  ourselves  primarily 
at  the  view-point  of  criminal  sociology,  for  while  an  ultimate  ex- 
planation of  the  nature  of  delinquency  may  have  interest,  up  to 
a  certain  point  in  the  technical  order  of  research  in  criminal 
anthropology,  yet  it  has  no  immediate  and  necessary  relation  to 
criminal  sociology.^ 

The  things  that  are  important  for  the  sociological  criminalist 
to  know  in  order  to  draw  his  juridical  and  social  inductions,  are 
the  factors  of  criminality  which  are  susceptible  of  positive  observa- 
tion in  the  biological,  as  well  as  in  the  physical  and  social  order. 
It  is  really  from  the  more  or  less  abnormal  tendencies  and  disposi- 
tions, hence  more  or  less  corrigible,  in  the  different  categories  of 
delinquents,  that  he  draws  his  conclusions  as  to  the  proper  treat- 
ment to  be  applied  to  them,  to  maintain  an  equilibrium  between 
the  necessities  of  social  defense  in  the  offended  and  the  rights  of 
human  personality  in  the  offender.  Whatever  may  be  the  origin 
and  biological  nature  of  delinquency,  the  sociological  conclusions 
will  not  be  influenced  thereby,  since  the  degree  of  abnormality 
and  of  corrigibility  in  each  category  of  delinquents  can  be  com- 
pletely determined  by  other  elements,  outside  of  the  general 
hypotheses.  This  will  become  evident  in  the  course  of  this  work. 
If,  however,  it  be  desired  to  give  some  critical  notice  to  these 
hypotheses,  they  can  be  reduced  to  the  following : 

The  comparative  examination  of  these  different  hypotheses  is 
very  suggestive,  and  very  useful  in  judging  the  scope  and  value  of 
each  of  them  and  in  reaching  that  synthetic  conclusion  which,  to 
my  mind,  is  the  expression  of  the  positive  truth. 

^  This  is  also  the  opinion  of  Gamhini,  "Sulla  genesi  della  delinquenza,"  S.  P. 
(March,  1899). 


Biological 
Abnormality 
by  .  .  . 


paihology  of 


102  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  65 

Crime  is  a  phenomenon  of: 

,j         ,.,    I  bioloeical  (Albrecht). 
Normality  <        .  f  /t>.     1 1    •    v 
[  social  (Durkheim). 

atavism  f  organic  and  psychic  (Lombroso,  Kurella). 

I  psychic  (Colajanni). 

neurosis  (Dally,  Minzloff,  Maudsley, 

Virgilio,  Jelgersma,  Bleuler). 

neurasthenia  (Benedikt,  Liszt, 

Vargha), 

epilepsy    (Lombroso,    Lewis,    Ronco- 

roni). 

,  I  (Morel,   Sergi,    Fere,    Zuccarelli,   Ma- 

degeneracy  \  /^  t  .  n 

[      gnan,  Corre,  Laurent). 

defect  of  nutrition  of  the  central  nervous  system 

(Marro). 

defect  of  development  of  the  inhibitive  centers  (Bonfigli). 

moral  anomaly  (Despine,  Garofalo). 

'  economic  influences  (Turati,  Battaglia,  Loria). 
Social  .  .  .      juridical  inadaptation  (Vaccaro). 
Abnormality  ■  complex    social   influences    (Lacassagne,    Colajanni, 
by  .  .  .  Prins,  Tarde,  Topinard,  Manouvrier,  Raux,  Baer, 

Kin,  Gumplovicz). 

Biologico-sodal  Abnormality  (Ferri). 

§  65.  Biological  Norm  or  Basis  of  Origin  and  Nature  of  Delinquency. 

According  to  the  conclusion  supported  by  Albrecht  at  the  First 
International  Anthropological  Congress  (Rome,  1886),  deUnquents, 
in  reproducing  the  tendencies,  habits,  and  often  the  organic  char- 
acteristics of  the  animal  world,  would  represent  the  normal  life 
of  nature  which  is  everywhere  murder  and  robbery,  while  the  con- 
duct of  an  honest  man  would  be  the  exception  and  hence  the 
anomaly  in  the  natural  order.  I  had  no  difficulty  in  replying  to 
the  illustrious  anatomist  with  the  unanimous  assent  of  the  members 
present,  that  his  paradoxical  conception  might  still  be  admitted 
in  the  sphere  of  comparative  anatomy  and  of  universal  life  but  that 
it  had  no  foundation  in  human  life,  which  alone  concerned  the 
criminal  anthropologist  and  sociologist.  And  further,  since  it  is 
evident  that  delinquents,  under  whatever  form  they  are  met  with 
in  present  humanity,  are  in  the  minority  in  comparison  with  the 


§66]  FUNDAMENTAL  OBJECTIONS  TO  DATA  103 

total  of  honest  folk,  they  really  represent  an  exception  in  the  hu- 
man world,  and  hence  constitute  a  biological  as  well  as  social 
abnormahty.^  I  further  said  that,  even  from  the  point  of  view 
of  comparative  anatomy,  it  is  inaccurate  to  assert  that  murder 
and  robbery  are  the  normal  conduct  of  animals,  ^  since  the  ani- 
mal acts  which  correspond  to  murder  among  men  are  not  the 
murder  of  an  animal  by  any  other  animal  whatsoever  but  only 
when  the  slayer  and  the  slain  belong  to  the  same  species.  Hence, 
as  there  is  no  crime  when  a  man  kills  a  mammal  for  food,  it  cannot 
be  said  that  a  carnivorous  animal  commits  an  anti-natural  act 
when  it  kills  an  herbivorous  animal.  In  this  more  exact  sense, 
one  cannot  assert  that  universal  life  consists  as  a  general 
rule,  that  is,  normally,  in  murder,  ravages,  and  thefts,  under- 
stood in  the  anti-natural  sense,  in  the  same  way  that  we 
understand  crime  in  humanity  in  an  anti-social  sense.  This 
consideration  also  destroys  the  similar  assertion  of  Bonfigli,' 
to  the  effect  that  crime  only  exists  because  of  and  in  the  meas- 
ure of  the  prohibition  of  the  law  and  that  consequently  "there 
are  no  acts  criminal  in  themselves,  i.  e.,  naturally  such,  since 
they  must  be  considered  as  acts  destined  to  satisfy  physical 
needs,  —  rape,  for  instance,  responding  to  the  need  of  reproduc- 
tion; theft,  to  the  necessity  of  nourishment;  murder,  to  the 
elimination  of  competitors."  The  procuring  of  nourishment,  re- 
production, and  the  destruction  of  a  competitor  are  so  many 
natural  acts  when  they  do  not  offend  the  individuals  of  the 
same  species,  with  the  same  physiological  needs  and  the  same 
conditions  of  existence;  but  they  become  anti-natural  (criminal) 
in  man  when  in  the  satisfaction  of  our  own  physiological  needs,  we 
obstruct  and  destroy  for  our  fellow-men,  the  conditions  which  are 
also  indispensable  for  them  in  the  satisfaction  of  their  needs. 

§  66.  Sociological  Norm  as  Basis  of  Origin  and  Nature  of  Delinquency. 

The  idea  that  commission  of  crime  is  a  normal  act  has  been  re- 
cently maintained  from  a  purely  sociological  standpoint,  by 
Durkheim,^  who    distinguishes  normal    from    abnormal    by  the 

*  See  "Actes  du  premier  congres  international  de  ranthropologie  criminelle 
(Rome,  1886),  pp.  110  e<  seq. 

2  See  Ferri,  "L'Omicidio,"  Introd. 

'  Bonfigli,  "La  storia  naturale  del  delitto"  (Milan,  1893),  pp.  18,  19. 

'  Durkheim,  "  Division  du  travail  social,"  pp.  33,  et  seq.;  "Les  regies  de  la 
methode  sociologique,"  pp.  81  el  seq.;  R.  P.  (June,  1894);  "Le  suicide"  (Paris, 
1898),  p.  413. 


104  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  66 

same  mistaken  criteria  that  I  pointed  out  in  my  reply  to  Albrecht, 
when  I  called  that  social  fact  normal  which  occurs  most  often  in 
time  and  space.  Now,  since  crime  shows  itself  in  every  human 
society,  Durkheim  concludes  that  crime  is  a  phenomenon  of  normal 
sociology;  or  rather  that  it  is  a  "factor  of  the  public  health,  an 
integral  part  of  every  healthy  society."  In  the  first  place,  as 
Gualterotti  ^  had  already  remarked,  Durkheim  falls  into  a  con- 
tradiction when  he  admits  that  crime  being  a  phenomenon  of 
normal  sociology  the  deUnquent  may  be  an  abnormal  individual, 
as  if  the  specific  product  of  an  abnormal  personality  could  be  nor- 
mal. It  is  obvious,  moreover,  that  in  pronouncing  the  criminal 
phenomenon  normal,  Durkheim  has  gone  astray  on  the  normality 
and  constancy  of  a  social  fact,  for  a  social,  or  even  a  biological, 
fact  may  be  constant  and  yet  abnormal  if  it  occurs  in  the  lesser 
number  of  cases.  Otherwise  one  should  also  say  that  disease  is  a 
phenomenon  of  normal  biology,  because  in  all  times,  in  all  places, 
in  all  organisms,  disease  is  observed.  The  positive  criterion  is  on 
the  contrary,  as  I  told  Albrecht,  found  in  the  majority  or  minority 
of  the  cases  which  show  one  phenomenon  or  another  for  each  social 
group.  That  is  why  parricide,  a  horrible  crime  in  Europe  and 
America,  is  a  permissible  act  and  even  a  duty  among  the  Battas 
of  Sumatra.  As  to  Durkheim's  second  assertion,  namely  that 
crime  is  a  factor  of  the  public  health  (although  Tarde,^  forgetting 
the  distinction  between  a  normal  and  a  constant  fact  which  we 
have  just  given,  was  very  much  scandalized  by  this  heresy),  we 
believe  that  it  is  partly  true  to  say,  as  does  Lombroso,  that  crime 
may  have  some  useful  effect  in  society,  as  pain  and  even  disease 
may  have  in  the  organism  of  the  individual.'  Genius  itself  is  a 
degenerescent  abnormality;^  but  it  is  almost  always  useful  to 
society,  because  it  is  a  higher  form  of  degeneracy  (evolutive); 
whereas  crime  and  insanity,  which  are  a  lower  form  of  degeneracy 

1  Gualterotti,  "Patologia  e  delitto"  S.  P.  (1894),  p.  833. 

*  Tarde,  "Criminalite  et  sante  sociale,"  R.  P.  (February,  1895),  and  in  "Etudes 
de  psychologie  sociale"  (Paris,  1898),  p.  136.  Durkheim  replied  (R.  P.,  May, 
1895),  to  his  sentimental  and  unscientific  tirades,  that  the  proofs  of  science  must 
be  accepted,  no  matter  what  are  the  impressions  of  sentiment.  Otherwise  we 
are  not  men  of  science,  "but  more  or  less  consistent  mystics;  and  mysticism 
is  the  reign  of  the  imagination  in  the  intellectual  domain." 

2  Lombroso,  "Les  bienfaits  du  crime,"  in  the  "Nouvelle  Revue"  (July,  1895), 
and  Riv.  di  sociologia  (November,  1895).  He  has  added  the  idea  of  the  Symbio- 
sis, i.e.,  utilization  of  crime  by  society,  as  the  final  conclusion  of  the  third  volume 
of  "I'Uomo  delinquente." 

*  See  Lombroso,  "L'Uomo  di  genio,"  6th  ed.  (Turin,  1894);  "Genie  e  dege- 
nerazione"  (Palermo^  1898). 

V 


§67]  FUNDAMENTAL  OBJECTIONS  TO  DATA  105 

(involutive),  are  almost  always  harmful  and  only  useful  by  way  of 
exception.^  Yet  neither  in  Durkheim's  observations  —  which 
Sorel  calls  courageous  ^  and  to  which  Tarde  could  oppose  only 
commonplace  artifices  of  syllogistic  controversy  —  nor  in  the 
observations  of  Lombroso,  is  the  truth  complete,  because  they 
did  not  make  the  distinction  (that  I  have  recently  made)  between 
atavic  or  anti-human  criminality  and  evolutive  or  politico-social 
criminality.'  It  is  quite  certain  that  all  the  social  damages  im- 
puted to  crime  by  common  sense  and  by  Tarde  in  his  controversy 
with  Durkheim  are  very  real  if  one  speaks  of  atavic  criminality, 
while  they  are  less  real  if  one  speaks  of  evolutive  criminality, 
which  may  even  contribute  by  reaction  to  social  progress  because, 
as  Durkheim  says,  "Sometimes  the  criminal  (I  add  evolutive)  has 
been  the  forerunner  of  future  morality."^  Thus,  for  example,  the 
whole  history  of  the  labor  movement  in  England  since  1800  shows 
how  the  popular  agitations  which  lasted  until  about  1870,  contrib- 
uted to  bring  about  the  present  political  hberties  and  mutual 
respect  in  the  economic  struggle  between  capitalists  and  work- 
men; and  yet  these  agitations  almost  always  took  the  forms  of 
criminality  (evolutive)  in  strikes  accompanied  by  violence,  riots, 
and  outrages.^  In  any  event,  whatever  may  be  the  result  of  the 
social  counter-effects,  crime  is  always  a  form  of  abnormal  activity 
and  hence  we  cannot  admit  with  Durkheim  that  crime  belongs  to 
normal  sociology  and  not  to  social  pathology. 

§  67.  Biological  Abnormality  as  Organic  or  Psychic  Atavism  as  Basis  of 
Origin  and  Nature  of  Delinquency. 

Among  the  biological  explanations  of  criminality  of  which  we 
are  now  going  to  speak,  the  most  characteristic,  and  hence  the 
most  actively  combated,  is  that  of  organic  and  psychic  atavism 
given  by  Lombroso  in  his  first  two  editions.  This  character  of 
atavism  is  absolutely  undeniable  in  many  anomalies  of  criminals: 
but  the  explanation  by  atavism  (indeed  like  all  those  which  are 

1  Ferri,  "La  rehabilitation  des  anormaux,"  in  "Revue  des  Revues"  (15  Feb- 
ruary, 1899). 

»  Sorel,  "Theories  p^nales  de  Durkheim  et  de  Tarde"  (15  February,  1899). 

'  Ferri,  " Delinquenti  e  onesti,"S.  P.  (June,  1896);  Sighele,  "Monde  criminale 
italiano"  (Milan,  1895),  had,  however,  distinguished  atavic  crime  from  evolutive 
but  from  the  morphological  point  of  view,  by  the  substitution  of  fraud  for  violence 
rather  than  by  its  content  and  its  determinant  motives. 

*  Durkheim,  R.  P.  (May,  1895),  p.  521. 

'  Sydney  and  Beatrice  Webb,  "History  of  Trade  Unionism,"  Cap.  II,  III. 


106  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  68 

purely  biological  or  purely  social),  although  it  has  been  taken  up 
and  maintained  by  Kurella,^  and  although  it  is  in  relation  to  the 
born-criminal  the  fimdamental  explanation,  has  the  defect  of  not 
embracing  all  of  the  anthropological  categories  of  delinquents,  nor 
even  all  the  habitual  cases  in  the  same  category.  It  must  be 
obvious  to  one  who  has  studied  delinquents,  that  those  who  are 
only  delinquents  occasionally  show  much  fewer  anomalies  in  gen- 
eral and  fewer  atavic  anomaUes  in  particular;  and  that  even 
among  born-criminals  there  are  some  whose  type  is  clearly  atavic 
and  others  whose  type  more  nearly  borders  on  pathology  or 
organic  and  psychic  degeneracy.  For  this  reason,  Lombroso 
himself,  as  early  as  the  third  edition  of  his  "Uomo  delinquente," 
said:  "Arrested  development  thus  shows  us  disease  concurrent 
with  that  atavism  to  which  we  have  acknowledged  such  predom- 
inance. Atavism  remains  in  spite  of  disease  or,  more  accurately, 
together  with  disease,  one  of  the  most  constant  characteristics 
of  the  criminal-born":^  a  fact  which,  parenthetically,  has  not 
prevented  many  critics  from  repeating  to  satiety,  that  Lom- 
broso thinks  atavism  the  sole  explanation  of  congenital  criminality, 
in  the  same  way  as  they  have  continued  to  repeat  that  he  studied 
only  the  cranium  of  criminals. 

§  68.  Biological  Abnormality  of  Epilepsy  as  Basis  of  Origin  and  Nature 
of  Delinquency. 

Thus,  Lombroso,  modifying  the  synthesis  in  the  measure  that 
he  diversified  and  completed  the  analysis  of  facts,  has,  in  his 
last  edition,  more  closely  associated  atavism  and  pathology  in 
the  explanation  of  criminality  basing  the  latter  on  epilepsy  and 
moral  insanity.  After  declaring  for  the  almost  exclusive  pre- 
dominance of  atavism  he  later  coupled  moral  insanity  with  con- 
genital criminality.  And  this  conception  is  now  accepted  by  the 
greater  number  of  Italian  alienists  as  shown  in  Tamburini's  report 
of  the  phreniatric  Congress  of  Sienna  (1886) .  And  lately  Lombroso 
has  added  that  at  the  bottom  of  moral  insanity  and  delinquency 
is  epilepsy  or  the  epileptoid  nature  of  the  various  criminals;  and 
that  in  many  cases  arrested  development  and  degeneracy  are  also 
present.  Naturally  this  explanation  has  been  met  with  a  horde 
of  objections  and  of  these  the  following  are  the  two  principal  ones: 

*  Kurella,  " Naturgeschichte  des  Verbrechers,"  p.  255.     See  also  Sard,  "La 
position  du  probleme  de  M.  Lombroso,"  R.  S.  (18  February,  1893),  p.  207. 
»  (1884),  p.  589. 


§69]  FUNDAMENTAL  OBJECTIONS  TO  DATA  107 

I.  Not  all  delinquents  are  epileptics  (and  Lombroso  never 
said  they  were) ;  nor  have  all  of  them  the  epileptoid  nature. 

II.  Epilepsy  or  general  pathology  excludes  atavism,  because 
"it  can  not  be  said  that  epilepsy  is  a  form  of  return  to  our  savage 
or  prehistoric  ancestors." 

In  my  opinion  these  objections  lack  solidity,  because,  following 
such  a  conception,  delinquency  would  not  be  (except  in  the  cases 
where  criminals  were  also  epileptics)  a  form,  but  rather  a  trans- 
formation of  the  epileptic  or  epileptoid  condition,  and  again; 
because  atavic  and  animal  traits  and  habits  are  observed  in  epi- 
leptics who  are  not  delinquents.  There  is  no  real  conflict  between 
atavism  and  pathology  as  is  shown  by  many  forms  of  insanity 
and  idiocy.  As  far  as  one  can  judge,  the  explanation  of  delinquency 
by  epilepsy,  to  which  Lombroso  has  given  a  rich  series  of  symp- 
tomatic proofs,  is  fimdamentally  true,  as  is  confirmed  by  the 
researches  of  Tonnini,  Ottolenghi,  Roncoroni,  and  De  Arcan- 
gelis.^  I  have  found  that  it  is  almost  always  the  sole  positive 
explanation  in  all  of  the  strange,  unforeseen,  and  motiveless  crimes 
against  the  person,  against  decency,  or  even  against  property. 
In  spite  of  this,  the  explanation  by  epilepsy  appears  incomplete 
when  one  reflects  that  there  are  many  simple  epileptics  who  do 
not  commit  crime  although  subject  to  social  and  physical  conditions 
in  which  the  evil  plant  of  crime  thrives  vigorously. 

§  69.  Biological  Abnormality  of  Organic  or  Psychic  Atayism  as  Basis  of 
Origin  and  Nature  of  Delinquency. 

I  have  already  said  that  Colajanni's  conclusion  on  crime,  which 
he  considers  "as  a  phenomenon  of  psychic  atavism,"  is  in  flagrant 
contradiction  with  the  rest  of  his  book,  wherein  he  criticises  as 
erroneous  and  valueless  (without  accepting  a  single  one)  all  of  the 
partial  conclusions  of  criminal  anthropology,  whether  in  the  organic 
or  in  the  psychological  field,  only  to  accept  in  the  end  this  hypoth- 
esis of  atavism  which  is  the  oldest  and  most  contested  synthesis 
of  these  partial  conclusions  of  fact.  But  even  aside  from  this,  a 
purely  psychic  atavism  is  inconceivable  unless  one  also  admits 
the  organic  atavism  which  Colajanni  wishes  absolutely  to  exclude, 

^  Tonnini,  "Le  epilessie  rapporto  alia  delinquenza"  (Turin,  1891);  Ottolenghi, 
"H  campo  visivo  negli  epilettici  e  delinquenti"  (Turin,  1891);  "Epilessie  trau- 
matiche,"  in  "Grionale  di  Accademia  medicale"  (Turin,  1890-91);  "Le  epilessie 
psichiche,"  in  "Revista  sperimentale  frentricia,"  1893;  G.  Roncoroni,  "Trattato 
clinico  de  1'  epilessia"  (Milan,  1893);  De  Arcangelis,  "Le  stimmate  epilettoidi  nei 
criminali  alienati,"  R.  S.  F.  (1897),  pp.  324  and  567. 


108  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  70 

or  which  without  any  scientific  reason  he  would  limit  exclusively 
to  the  central  nerve  cells,  as  if  these  latter  lived  and  were  trans- 
mitted by  heredity  in  space  and  not  indissolubly  boimd  to  all  the 
other  organic  elements  of  life.^ 

§  70.  Biological  Abnormality  of  Neurosis  or  Neurasthenia  as  Basis  of 
Origin  and  Nature  of  Delinquency. 

In  opposition  to  the  explanation  by  atavism,  we  have  the  ex- 
planation of  delinquency  as  a  phenomenon  of  pathology,  which  has 
been  developed  in  different  ways  by  different  authors.  WTiile 
Lombroso  (and  with  him  Bevan  Lewis,*  besides  several  ItaUan 
criminal  anthropologists)  traces  the  pathological  condition  of  the 
delinquent  to  an  epileptoid  origin,  the  English  psychopathists 
(Thomson,  Maudsley)  and  Virgilio  in  Italy  consider  crime  as 
only  a  branch  of  the  tnmk  to  which  insanity  also  belongs.  Ac- 
cording to  Maudsley  there  is  an  intermediate  zone  between  the 
branch  of  crime  and  that  of  insanity.  Benedikt,  on  his  part 
(followed  by  the  jurists  Liszt  and  Vargha),'  conceives  the  patho- 
logical condition,  in  which  crime  originates,  as  a  physical,  moral, 
and  esthetic  neurasthenia,  either  congenital  or  acquired,  that 
produces  the  professional  criminal:  then  the  delinquent  by  dis- 
ease or  intoxication  and  the  degenerate  criminal  are  added.  Of 
these  last  hypotheses,  that  of  Benedikt  seems  very  vague  since 
by  the  term  "neurasthenia"  we  neither  add  to  nor  particularize 
our  clinical  or  biological  knowledge  of  the  nature  of  delinquency; 
not  to  mention  that  the  symptoms  given  by  Beart  for  neurasthenia 
ornervosism  (which  to  the  American  neurologist  have  very  httle 
difference  although  Colajanni  thinks  the  contrary)  do  not  alto- 

^  I  believe,  however,  that  Colajanni  only  raised  the  hj^pothesis  of  psychic 
atavism  because  it  had  been  mentioned,  shortly  before  the  publication  of  his  work 
(1889)  by  JauveUe  on  Atavism  psychic,  B.  S.  A.  (Paris,  1887),  and  by  Manie- 
gazza  ("Gli  atavismi  psichici"),  in  the  A.  P.  A.,  1888.  As  Groppali  brought  to  my 
attention  at  the  Second  International  Congress  of  Sociology,  in  the  "Pensiero 
italiana"  (December,  1896,  p.  417),  "the  central  and  inspiring  idea  of  Colajanni's 
work  is  the  predominance  of  the  social  factors  in  crime"  which  he  has  borrowed 
from  the  little  work  of  Turaii,  "  delitto  e  questione  sociale  "  (Milan,  1883),  and  with 
which  I  shall  deal  presently. 

*  Bevan  Lewis,  "The  Genesis  of  Crime,"  in  the  "Fortnightly  Review"  (Sep- 
tember, 1893);  also  CabadS,  "De  la  responsibiUt6  criminelle"  (Paris,  1893),  p. 
298,  admits  "a  very  great  analogy"  between  crime  and  epilepsy.  See  also  Peixoto, 
"Epilepsia  e  crime"  (Bahia,  1887). 

*  Liszt,  "Apergu  des  applications  d'anthropologie  criminelle,"  in  the  "Actes 
du  congres  de  Bruxelles"  (1883),  p.  95;  Vargha,  "Die  Abschaffung  der  Strafrecht- 
schaft"  (Gratz,  1896),  I,  Cap.  I. 

V 


§71]  FUNDAMENTAL  OBJECTIONS  TO  DATA  109 

gether  agree  with  the  symptoms  of  born-criminals  (the  profession- 
als of  Benedikt),  among  whom  something  quite  different  from 
nervous  exhaustion  is  observed.  Benedikt's  hypothesis  is  wholly 
applicable  only  to  the  single  category  of  physical  neurasthenic 
vagabonds  among  whom  there  has  long  been  observed  an  organic 
debility  that  unfits  them  for  all  regular  and  prolonged  work.  As 
to  the  common  origin  of  crime  and  insanity,  that  is  in  many  cases 
more  true.  There  are,  however,  many  delinquents  by  occasion 
whom  it  does  not  explain;  and  it  does  not  tell  us  why  there  are 
a  multitude  of  insane  who  are  not  at  all  delinquent.  There  is 
certainly  a  frequent  and  strong  analogy  between  crime  and  in- 
sanity, just  as  there  is  between  all  of  the  more  serious  forms  of 
human  degeneracy ;  but  this  analogy  falls  short  of  a  complete  ex- 
planation. Furthermore,  there  is  really  a  profound  difference, 
both  of  anthropological  type  and  psychic  characteristics,  between 
ordinary  madmen  and  the  criminal  insane.^ 

§  71.  Biological  Abnormality  or  Degeneracy  as  Basis  of  Origin  and  Nature 

of  Delinquency. 

In  the  last  few  years  there  has  been  a  great  revival  in  biological 
and  psychological  circles  of  the  conception  of  degeneracy,  which 
after  its  promulgation  by  Morel  in  1857  was  long  quite  neglected. 
While  there  is  some  truth  in  this  explanation  of  the  origin  of  crime 
there  is  also  much  that  is  vague.  No  precise  and  positive  biological 
idea  of  degeneracy  is  given  and  it  is  considered,  in  harmony  with 
Morel's  theory,  as  "a  deviation  of  the  primitive  or  normal  type," 
which  goes  on  by  transformation  and  aggravation  in  successive 
generations  until  it  is  extinguished  by  sterility  or  suicide.^  This 
idea  of  degeneracy  has  now  become  so  broad  that  "it  comprehends 
everything  that  is  referred  to  it  "  and  by  explaining  too  much  ends 
in  explaining  too  little.  It  is,  as  Sorel  observes,  "a  vague  and 
convenient  formula  which  permits  of  agreement  provided  one  is 
not  specific  on  anything." ' 

^  I  have  often  observed  this  difference  and  analogy  in  comparing  the  inmates 
of  asylums  for  the  insane  and  those  for  the  criminal  insane,  such  as  that  at  Mon- 
telupo  in  Tuscany. 

^  "Degenerescence,"  in  the  "Dictionaire  encyclop^dique  des  sciences  medi- 
cates"  by  Dechambre,  and  in  the  "Dictionaire  des  sciences  anthropologiques." 
See  also  Dcdlemagne,  "Degener6s  et  des6quilibr6s  (Brussels,  1894);  Giuffrida 
Ruggieri,  "Sulla  dignity  morfologica  dei  segni  detti  degenerativi"  (Rome,  1897); 
A.  S.  R.  A.,  fasc.  2-3;  Lombroso,  "Caratteri  speciale  dei  degenerescenci,"  in  the 
A.  P.  (1898),  XIX,  255,  where  he  distinguishes  three  great  species  of  degeneracy 
—  cretinous,  epileptic,  and  paranoic. 

»  Sorel,  R.  S.  (1893),  I,  208. 


110  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  74 

§  72.  Biological  Abnormality  of  Defective  Nutrition  as  Basis  of  Origin  and 
Nature  of  Delinquency. 

The  same  must  be  said  of  Marro's  hypothesis  of  "defective 
nutrition  of  the  central  nervous  system  " :  while  it  presents  a  partial 
truth  which  explains  the  irritable  weakness  and  impulsiveness  of 
deUnquents,  yet  it  remains  indeterminate,  since  this  defect  of  nu- 
trition may  give  rise  not  only  to  crime  but  to  every  other  form  of 
biological  inferiority,  from  simple  organic  and  physical  debility 
without  any  other  results,  to  suicide  and  insanity. 

§  73.  Biological  Abnormality  of  Defective  Development  of  Inhibitive  Centers 
as  Basis  of  Origin  and  Nature  of  Delinquency. 

Less  indeterminate  is  the  idea  of  Bonfigli  who  discovers  the 
origin  of  crime,  not  in  the  natural  sense  of  the  word  but  in  the 
sense  of  action  contrary  to  the  laws  in  force,  in  the  nervous  system 
"  where  the  forces  of  the  inhibitive  centers  are  not  well-propor- 
tioned to  the  functional  activity  of  the  other  parts  of  the  same  sys- 
tem . "  Aside  from  the  question  whether  there  are  really  and  strictly 
speaking,  centers  of  cerebral  inhibition,^  it  is  a  fact,  as  I  have 
shown  in  "L'Omicidio"^  that  impulsiveness  due  to  defect  of 
cerebral  inhibition  is  the  fundamental  psychic  characteristic  of 
the  criminal.  But  it  is  also  true  that  this  purely  descriptive 
explanation  does  not  help  us  very  far  along  the  road  to  the  genetic 
explanation  of  criminality. 

§  74.  Biological  Abnormality  of  Moral  Anomaly  as  Basis  of  Origin  and 
Nature  of  Delinquency. 

Finally,  Despine's  idea,  taken  up  by  Garofalo,  to  the  effect  that 
congenital  criminahty  is  not  within  the  real  field  of  pathology 
properly  so  called,  but  is  limited  to  an  anomaly  of  moral  sense, 
does  not  seem  to  me  to  correspond  to  fact;  because,  even  in 
the  single  category  of  born-criminals  (always  disregarding  criminals 
who  are  evidently  insane),  it  is  impossible  to  exclude  the  more  or 
less  striking  presence  of  pathological  characteristics.  It  is  also 
impossible  to  forget  hereditary  transmission  which  is  always  veri- 
fied in  criminality,  insanity,  suicide,  and  moral  anomalies,  a  fact 
which  demonstrates  their  common  nature.     The  clean-cut  sepa- 

*  Oddi,  "L'inibizione  dal  pimto  di  vista  fisio-patologico,  psicologico  e  sociale" 
(Turin.  1898). 

»  V.  P.  II,  Cap.  X. 


§75]  FUNDAMENTAL  OBJECTIONS  TO  DATA  111 

ration  that  Garofalo  attempts  to  make  of  congenital  criminality 
and  insanity  is  not  scientifically  exact,  —  for  instance,  when  he 
reiterates,  with  Esquirol  and  others,  that  in  the  madman  crime  is 
an  object  in  itself,  while  in  the  criminal  it  is  the  means  of  obtaining 
some  selfish  end.^  On  the  contrary,  there  are  insane  persons 
who  commit  crime  either  to  attain  a  legitimate  though  imaginary 
object,  for  example  self-defense  mider  the  delusion  of  persecution, 
or  from  anti-social  motives  of  revenge,  lust,  or  other  motives  just 
like  ordinary  criminals.  The  insane  to  whom  crime  is  its  own  ob- 
ject are  but  a  slight  minority,  for  example,  the  homicidal  maniac 
and  kleptomaniac.  Nor  would  it  be  enough,  in  abandoning  this 
criterion  (as  Garofalo  did)  ^  to  hold  as  he  does  to  the  other 
proposition,  namely,  that  the  psychic  process  which  determines 
crime  in  the  madman  "is  not  in  agreement  with  the  external 
cause,"  whereas  in  the  born-criminal,  "  it  is  in  agreement  with  the 
impressions  of  the  exterior  world."  There  are,  indeed,  madmen 
who  act  as  I  have  already  said,  through  vengeance,  lust,  or  cu- 
pidity, adapting  the  means  accurately  to  the  end  and  taking 
account  of  offenses  received  and  exterior  temptations,  or,  vice 
versa,  there  are  sane  criminals  whose  acts  are  not  in  agreement 
with  impressions  from  the  exterior  worid,  such  as  the  assassin- 
thief  who  first  kills  and  then  despoils  his  victim  without  any  con- 
sideration of  personal  defense  or  of  impunity  and  through  purely 
instinctive  ferocity.  There  is,  again,  the  criminal  who  kills  the 
"first  passer-by"  to  win  the  respect  of  his  companions;  and  the 
criminal  who  engrafting  an  altruistic  sentiment  on  an  atrophied 
moral  sense,  despoils  or  kills  an  innocent  victim,  in  aid  of  a  third 
person,  and  so  on.' 

§  76.  Biological  Abnormalities  as  Basis  of  Origin  and  Nature  of  Delin-    < 
quency,  —  Summary. 

To  summarize :  Each  of  these  biological  -explanations  of  crim- 
inality is  true  in  part.  I  say  in  part  because  each  of  them  is  veri- 
fied more  or  less  completely  by  facts,  in  such  or  such  a  variety 
of  each  category.  But  none  of  these  hypotheses  is  sufficient  nor 
complete;  first,  because  they  are  not  sufficient  to  explain  the 
natural  genesis  of  crime  in  all  the  categories  of  delinquents;  in 
the  second  place,  even  when  they  agree  with  the  characteristics 

'  Garofalo,  "  Criminalogia, "  1st  ed.,  p.  99. 
*  Garofalo,  "Criminalogia,"  2d  ed.  p.  106. 
'  Ferri.  "L'omicidio."  pp.  589  et  seq. 


112  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  75 

of  a  given  criminal  type,  they  still  fall  short  of  giving  the  precise 
and  fundamental  reason  why  in  some  individuals  a  given  condition 
of  biological  abnormality  presages  crime  while  in  others  only 
insanity,  suicide,  or  simply  an  organic  and  psychic  inferiority. 
Why  is  it,  that  of  a  hundred  insane  subjects,  either  neuropathic, 
neurasthenic,  epileptic,  degenerate,  defective  in  the  nutrition  of 
the  nervous  system  or  of  the  inhibital  centers,  or  who  show 
general  anomaUes,  there  are  only  twenty,  thirty,  or  fifty  who  com- 
mit crimes  while  the  others  do  not?  In  some  of  the  cases  a  satis- 
factory reply  may  be  given  that  the  others  may  be  influenced  by 
a  favorable  physical  and  social  environment,  which  instead  of 
turning  the  balance  to  the  side  of  their  biological  anomaly,  restricts 
it  and  prevents  them  from  passing  to  excesses  rising  to  the  grade 
of  crime.  Even  this  does  not  fully  explain;  for  there  are  de- 
generates and  madmen,  Uving  in  about  the  same  family  and  social 
environment,  some  of  whom  become  delinquents  while  others 
do  not,  and  some  become  sanguinary  and  violent,  while  others, 
with  an  organic  repugnance  to  homicide,  commit  thefts  or  frauds, 
and  vice  versa.  The  varying  differences  of  exterior  circumstances, 
which  are  inevitable  for  each  moment  of  life  and  for  each  indi- 
vidual, do  not  explain  this  enormous  difference  in  the  final  result. 
Of  two  idiots  similarly  treated  in  their  family  and  subject  to  the 
same  influences,  one  responds  to  pleasantries  by  murder  and  the 
other  not.  Of  two  degenerates  or  two  insane  persons  who  are 
refused  in  marriage,  one  kills  the  young  woman  and  the  other  kills 
himself  at  her  feet.  Of  two  or  more  degenerates  or  neurasthenics, 
as  the  result  of  poverty,  one  becomes  merely  an  inoffensive  vaga- 
bond who  does  nothing  worse  than  beg,  while  another  devotes  him- 
self to  theft  and  even  to  violent  robbery  accompanied  by  murder. 
There  is  no  explanation  for  the  differences,  and  a  thousand  other 
illustrations  could  be  cited.  It  is  useless  to  say,  as  does  Ma- 
nouvrier,^  that  two  individuals,  even  living  in  the  same  family, 
never  find  themselves  in  exactly  identical  conditions  of  environ- 
ment, because,  although  true  in  an  abstract  and  metaphysical 
way,  yet  in  reality  the  little  differences  of  circumstances  and  en- 
vironment, as  between  brothers  living  in  the  same  family,  are  not 
a  cause  proportionate  to  the  enormous  difference  of  results,  where 
one,  for  instance,  remains  honest  and  the  other  becomes  a  mur- 
derer, or  where  one  of  them  to  escape  poverty  prefers  suicide 
to  murder.  The  fact  is  that  the  biological  factor  of  criminality, 
1  Manmivrier,  "Les  aptitudes  et  les  actes"  (October,  1893),  p.  327. 


§75]  FUNDAMENTAL  OBJECTIONS  TO  DATA  113 

the  criminal  temperament,  consists  in  something  specific  that  has 
not  yet  been  determined,  but  without  which  there  is  no  explana- 
tion of  such  diverse  results,  out  of  all  proportion  to  the  exterior 
circumstances  in  which  are  often  found  individuals  of  every  social 
class  tainted  with  some  stigmata  of  organic  or  physical  anomaly. 
I  become  more  fixed  in  this  conclusion  when  I  think  of  the  criminal 
type  which  serves  to  distinguish  delinquents  not  only  from  normal 
individuals  but  also  from  the  insane,  the  degenerates,  epileptics, 
and  non-delinquent  neurasthenics. 

A  study  of  the  inmates  of  an  ordinary  insane  asylum,  such  as  I 
made  at  Pesaro  and  at  Bologna,  is  enough  to  at  once  establish  this 
fact.  A  great  majority  of  these  unfortunates  do  not  show  the  crim- 
inal type  (especially  in  the  physiognomy),  while  on  the  contrary,  in 
a  small  number  of  insane  who  have  committed  crime,  the  criminal 
type  is  frequent.     The  well-defined  type  of  the  murderer,  such  as 

1  distinguished  it  in  one  young  soldier  out  of  seven  hundred,  I  have 
met  with  in  only  three  or  four  insane  persons  in  the  asylum  of  Pe- 
saro; and  in  the  same  way  that  the  soldier  told  me  he  had  been  con- 
victed of  homicide  in  his  infancy,  these  insane  persons  proved  to 
have  been  tried  for  murder.  I  can  distinguish  the  homicide  type 
among  a  hundred  persons  aflFected  with  general  degeneracy  or 
epilepsy  or  neurasthenia.  And  inversely,  in  the  asylum  for  the 
criminal  insane  at  Montelupo,  I  found  a  great  number  of  criminal 
types  always  cleanly  divisible  into  murderers  and  non-violent 
thieves,  for  the  simple  reason  that  there  are  there  confined,  not 
ordinary  insane  and  degenerates,  but  delinquent  madmen  and  de- 
generates. This  does  not  contradict  the  fact  that  there  are  on 
the  other  hand  some  delinquent  degenerates  who  do  not  show  the 
criminal  type  and  who  have  observable  symptoms  of  only  serious 
degeneracy.  This  is  because  a  very  serious  degeneracy  may  efface 
the  specific  marks  of  criminality  in  its  external  manifestations. 

This  amounts  to  saying  that  criminality,  especially  when  con- 
genital (but  in  part  when  occasional),  is  a  really  specific  form  of 
biological  anomaly,  which  in  the  field  of  race  and  temperament,  is 
distinguishable  from  every  other  form  of  anomaly,  pathology,  or  de- 
generacy, and  leads  precisely  to  active  crime,  when  favored  by  given 
physical  and  social  conditions  that  offer  to  the  predisposition  of  the 
individual  the  occasion  and  the  means.^     Hence,  not  as  explaining 

^  In  agreement  with  these  ideas  which  he  develops,  see  Del  Greco,  "Malattia 
e  teoric  biologiche  della  genesi  del  delitto,"  in  the  "Manicomio"  (1896),  Nos. 

2  and  3,  and  "  Temperamenti  e  carattere  nella  psichologia  antropologia  criminali" 
(1898),  p.  42. 


114  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  75 

the  essence  or  nature  of  criminality  but  simply  because  it  is  necessary 
to  give  expression  to  my  thought,  I  believe  that  the  most  accurate 
and  most  positive  conception  from  the  biological  standpoint,  is  that 
of  a  "criminal  neurosis,"  distinct  in  itself  from  any  pathological, 
atavic,  degenerative,  or  other  form  whatsoever:  a  criminal  neu- 
rosis that  one  might  again  term,  with  Virgilio,  a  form  of  "psychic 
teratology,"  with  which  are  certainly  associated  in  a  given  delin- 
quent in  a  more  or  less  predominant  way,  some  characteristics 
of  atavism,  retarded  development,  neurasthenia,  or  degeneracy, 
but  which  of  itself  constitutes  the  specific  factor  whereby  a  particu- 
lar individual,  with  certain  biological  characteristics  and  exposed 
to  certain  influences  of  physical  and  social  environment  commits  a 
given  crime.  If  I  wished  to  attempt  one  further  step  in  advance 
I  might  repeat  what  I  have  said  elsewhere;  namely,  that  the  con- 
dition of  physio-psychic  anomaly  (through  atavism,  pathology, 
and  degeneracy),  while  affecting  the  whole  nervous  system  and 
organism  of  the  individual,  may  preferentially  attack  the  intelli- 
gence, the  affections,  or  the  will,  and  that  in  the  first  case  we 
would  have  insanity,  in  the  second,  crime,  and  in  the  third,  sui- 
cide, it  being  conceded  that  insanity  is  the  shipwreck  of  the 
intelligence,  that  crime  is  the  lack  or  loss  of  the  moral  or  social 
sense,  and  that  suicide  is  the  bankruptcy  of  the  will  in  the  struggle 
for  existence.^  Be  that  as  it  may,  the  substance  of  my  thought 
returns  to  the  point  where  it  attributes  to  criminality  of  whatever 
form  and  category,  a  complex  origin  and  nature,  both  biological 
(in  the  specific  sense  indicated  above),  as  well  as  physical  and 
social.  As  for  the  biological  factor  considered  separately,  crime  is 
explicable  only  by  the  special  and  characteristic  condition,  called 
for  want  of  a  more  exact  term  "criminal  neurosis,"  so  also  no  crime, 
no  matter  how  insignificant,  can  be  positively  explained,  unless  it 
be  considered  as  the  resultant  not  only  of  the  biological  factor  but 
also  of  the  physical  and  social  factors.  Certainly  the  predom- 
inance of  a  given  order  of  factors  determines  the  distinctions  in  the 
mass  of  delinquents,  in  accordance  \\nth  a  classification  which 
we  shall  see  later.  But  it  is  also  certain  that  every  delinquent 
and  every  crime  of  any  category,  is  the  simultaneous  product 
of  the  concurrence  of  these  three  natural  orders.^    This  synthetic 

^  See  also  AngioleUa,  "Mamiale  di  anthropologia  criminale"  (Milan,  1898), 
p.  309. 

*  It  is  because  the  genesis  of  delinquency  is  biologico-physico-social  that  it  is 
called  in  my  theory,  when  considered  as  an  anomaly,  a  biologico-social  anomaly, 
since  it  could  not  be  called  an  anomaly  of  the  physical  (telluric)  medium,  although 
that  necessarily 'concurs  in  its  determination. 


§76]  FUNDAMENTAL  OBJECTIONS  TO  DATA  115 

explanation  of  the  origin  and  nature  of  crime  has  never  been 
directly  attacked  either  by  the  metaphysical  critics  or  by  the 
positivists  of  the  new  school.  They  thus  implicitly  admit  that 
it  is  true  and  complete:  after  some  criticism  of  detail  on  particular 
points  of  the  natural  genesis  of  crime,  they  even  gave  the  impres- 
sion that  they  were  entitled  to  the  credit  for  this  proposition  of 
the  concurrence  of  the  different  criminal  factors  which  we  have 
asserted  from  the  beginning.^ 

§  76.  Basis  of  Origin  and  Nature  of  Crime  Complex. 

Let  us  repeat  once  more  that  in  our  opinion  crime  is  not  an 
exclusively  biological  phenomenon  nor  the  exclusive  product  of 
the  physical  and  social  environment,  but  that  every  crime,  trivial 
or  grave,  is  always  the  resultant  in  every  anthropological  category 
of  delinquents  and  in  every  individual  of  the  category,  both  of  a 
special,  permanent  or  transitory,  congenital  or  acquired  abnor- 
mality of  the  organic  or  psychic  constitution,  and  of  external 
physical  and  social  circumstances  which  concur  in  a  given  time  and 
place  in  determining  the  action  of  a  given  man.  Of  this  I  have 
furnished  a  demonstration  and  an  example  in  my  own  positivistic 
researches  on  the  murderer.  Let  us  finally  repeat,  nevertheless, 
that  in  every  delinquent  whomsoever  and  in  every  crime  whatever 
committed  by  him,  the  determinating  predominance  varies, 
whether  it  be  the  predominance  of  one  of  the  three  orders  of 
criminal  causation,  or  the  predominance,  in  either  of  these  orders, 
of  one  of  the  particular  causes.  Murders  committed  by  the 
the  insane  are  largely  the  effect  of  the  psycho-pathological  con- 
dition of  the  individual;  but  this  would  not  be  sufficient  to  cause 
murder,  if  it  were  not,  in  the  first  place,  of  a  nature  to  give  the  im- 
pulsion toward  this  crime  (for  otherwise  the  madman,  instead  of 
killing  another,  would  kill  kimself  or  would  fall  into  simple  de- 
lirium ^)  and  unless,  in  the  second  place,  the  physical  and  social 
conditions  concurred  here  also,  although  in  a  lesser  degree. 

^  For  instance,  while  Turati,  Colajanni,  Tarde,  etc.,  accuse  us  of  being  too 
anthropological,  Brusa,  "Sul  nuovo  positivismo  nella  giustizia  penale"  (Turin, 
1887),  LXII,  charges  us  with  giving  too  much  relief  "to  natural  and  social  soli- 
darities" while  neglecting  the  individual  factors. 

*  This  is  exactly  what  Del  Greco  proved  (and  I  said  it  in  my  second  edition, 
1892,  p.  128)  by  clinical  observation  in  "II  delinquente  paranoico  omicida"  (June, 
1894),  when  he  showed  that  of  the  multitude  of  paranoics  inmates  of  his  asylum 
for  the  criminal  insane  all  in  a  uniform  medium  and  all  with  hallucinations  of  per- 
secution, the  majority  reacted  by  depression  and  plaintive  whinings.  Some  asked 
aid  and  pity,  and  others  went  as  far  as  insults  (injiu^s)  and  threats:  while  only  a 


116  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  76 

Ten  degrees  less  of  heat,  or  a  few  millimeters  more  of  barometric 
pressure  on  the  particular  day  might  perhaps  have  prevented 
the  murder.  So  also,  if  the  victim  had  not  met  the  madman  or  if 
the  latter  had  been  better  guarded  and  cared  for,  the  homicide 
would  not  have  occurred.  The  same  may  be  said  of  murder 
committed  through  congenital  tendencies  to  savagery,  without 
any  clinical  form  of  mental  alienation.  At  the  opposite  extreme, 
homicide  caused  by  a  political  ideal  (and  not  by  party  revenge) 
is  largely  the  effect  of  the  political  and  social  conditions  of  environ- 
ment. But  its  complete  explanation  is  only  to  be  had  by  consider- 
ing also  the  physical  conditions,  the  action  of  which,  in  this  case, 
will  not  be  obvious  and  might  easily  escape  notice,  although 
none  the  less  real.  A  hot  wind,  an  excessive  and  stifling  heat, 
may  diminish  the  nervous  energy  of  the  individual  and  lead  him 
to  postpone  his  act  until  to-morrow  and  to-morrow  it  may  be  no 
longer  possible.  The  victim  may  have  gone  away  or  have  been 
warned.  A  mild  temperature  and  stimulating  air  may,  on  the 
contrary,  heighten  the  resolution  and  concur  in  the  execution  of 
a  political  murder.  Nor  may  one  at  all  disregard  the  biological 
factor  in  this  case.  It  is  true  that  one  who  commits  homicide  in 
obedience  to  a  political  ideal  has  nothing  in  common  with  the  ordi- 
nary criminal,  although  there  are  also  ordinary  insane  persons  and 
criminals  who,  in  given  circumstances,  sometimes  perpetrate 
political  attempts,  as  the  effect  of  a  kind  of  epidemic  such  as  oc- 
curred in  the  religious  attempts  of  the  Middle  Ages.  But  even 
when  the  political  homicide  is  committed  only  through  the  im- 
pulsion of  an  honorable  social  ideal,  the  personal  factor  plays  its 
part,  as  is  sometimes  seen  in  the  case  where  the  one  selected  to 
accomplish  such  an  act  is  unable  to  overcome  his  repugnance  to 
shedding  blood  and  prefers  suicide. 

The  same  may  be  said  of  chance  murder  ("homicide  occa- 
sionel ")  which  is  the  consequence  of  gambling  or  drink.  The  proof 
of  it  is  that  not  all  of  those  who  become  drunk  or  dispute  in  gaming 
end  by  giving  knife  wounds,  even  in  approximately  similar  exterior 
circumstances,  or  in  circumstances  in  which  the  differences  are 
at  most  slight  and  not  proportionate  to  the  varying  result  between 

very  small  number  reached  the  point  of  crime  (blows,  woundings,  etc.),  or  at  least 
would  have  reached  it,  if  not  prevented.  Thus,  as  Angxolella  says,  "Sullo  stato 
actuale  dell'  anthropologia  criminale,"  in  the  "Rivista  di  frenetricia"  (1895),  p. 
180.  "The  stimulant  is  the  same:  the  difference  is  in  the  individual  character 
w^hich  reacts  in  a  different  way."  See  also  my  report  to  the  Geneva  Congress  on 
the  "Temperamento  criminale,"  S.  P.  (June,  1896). 
V 


§76]  FUNDAMENTAL  OBJECTIONS  TO  DATA  117 

these  two  extremes:  at  one  extreme  animated  words,  at  the  other 
murder.  For  every  attempt,  one  may,  in  relation  to  every  crim- 
inal, repeat  the  same  observation  concerning  the  individual  in- 
fluences of  each  of  the  particular  factors,  on  each  subject,  at  each 
moment  of  his  life;  and  one  may  say  generally  that,  according 
to  the  different  categories  of  delicts  and  delinquents,  against  the 
person  or  against  property,  against  morality  or  honor,  the  bio- 
logical, physical,  or  social  factors  predominate  differently  in  the 
effective  determination  of  the  delict.^ 

What  we  have  said  of  the  natural  genesis  of  crime  may  also  be 
said  of  every  other  form  of  human  activity,  normal  or  abnormal. 
Thus,  for  instance,  one  cannot  speak  of  the  other  great  manifesta- 
tions of  social  pathology  such  as  insanity,  suicide,  alcoholism, 
or  vagabondage,  nor  of  the  great  manifestations  of  biological 
pathology  of  which  heredity  and  contagion  are  two  fundamental 
conditions  of  development,  without  thinking  that  they  are  the  re- 
sultants of  the  combined  action  of  anthropological  factors  (heredi- 
tary predisposition  or  momentary  disposition  of  the  individual),  of 
physical  factors  (conditions  of  the  telluric  medium),  and  of  social 
factors  (conditions  of  family  life,  sensitive,  nervous,  and  intel- 
lectual). In  this  connection  it  is  strange  that  one  of  the  most 
incisive  of  contemporary  sociologists,  Durkheim,  excludes  from 
the  causality  of  suicide,  the  anthropological  factors  (heredity  and 
psycho-pathological  conditions)  and  the  physical  factors  (such  as 
the  changes  of  the  seasons),  notwithstanding  that  the  constantly 
increasing  number  of  suicides  in  the  hot  months  depends,  for 
instance,  on  the  debilitation  and  irritability  of  the  nervous  system 
produced  by  excessive  heat.  One  should  not,  however,  disregard 
his  explanation,  although  in  itself  insufficient,  wherein  he  adverts 
to  the  greater  length  of  the  days  and  consequently  the  greater 
number  of  affairs  and  preoccupations  in  which  the  persons  pre- 
disposed to  suicide  live.^ 

^  See  my  communication  to  the  Criminal  Anthropological  Congress  of  Paris, 
"Sm-  la  valeur  relative  des  conditions  individuelles,  physiques  et  sociales  qui  deter- 
minent  le  crime"  (May,  1889);  Dallemagne,  "Theories  de  la  criminality"  (Paris 
1896),  p.  193,  acknowledges  that  my  theory  is  "one  of  the  most  complete"  and  that 
complex  formulae  like  mine  "are  the  only  ones  that  it  is  necessary  to  retain  and 
submit  to  methodical  observation  and  continued  analysis."  Every  day  there  is 
an  increase  in  the  number  of  criminal  anthropologists  and  sociologists  who  accept 
my  synthetic  theory  (already  developed  in  my  first  edition,  1881):  it  finds  new 
applications  and  proofs  in  anthropology  as  well  as  in  criminal  statistics  and  in  the 
juridico-social  systems  of  defense  against  crime. 

^  Durkheim,  "Le  suicide"  (Paris,  F.  Alcan),  p.  97. 


118  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§77 

§  77.   Social  Abnormality  of  Economics  as  Basis  of  Origin  and  Nature  of 

Delinquency. 

Now  these  considerations  on  the  inseparable  concurrence  of 
the  anthropological,  physical,  and  social  factors  in  every  form  of 
human  activity  and  on  the  variable  importance  of  each  of  them 
in  every  particular  case,  not  only  assist  us  to  develop  and  give 
precision  to  our  idea  on  the  origin  and  nature  of  criminahty  but 
they  are  useful  as  well  in  showing  the  insufficiency  of  the  other 
group  of  hypotheses  which  are  still  to  be  examined.  According 
to  many  of  our  critics,  and  especially  those  who  have  rarely  or 
never  studied  criminals  with  a  truly  scientific  method  and  by 
direct  observation,  criminality  is  a  phenomenon  of  exclusively 
social  origin,  while  showing  one  or  another  of  the  particular  as- 
pects which  this  kind  of  causes  may  take.  There  are  some  who 
maintain  that  the  whole  social  medium  is  determined  by  economic 
conditions,  and  that  consequently  crime,  in  whatever  form  it 
presents  itself,  is  but  the  efiFect  of  economic  disease.  I  have 
so  fully  discussed  this  opinion  elsewhere  that  there  is  no  need  of 
repetition  here.^  The  Marxian  doctrine  of  historical  material- 
ism, which  I  think  it  more  accurate  to  call  the  doctrine  of  economic 
determinism,  according  to  which  the  economic  conditions  of  each 
social  group  in  each  phase  of  its  evolution  determine,  "in  the  last 
analysis,"  as  Engel  says,  that  is,  directly  or  indirectly,  both  the 
moral  sentiments  and  the  poUtical  and  legal  institutions  of  the 
same  group,  is  profoundly  true.  It  is  the  fundamental  law  of 
positivistic  sociology.'^  Yet  I  think  that  this  theory  should 
be  supplemented  by  admitting  in  the  first  place  that  the  economic 
conditions  of  each  people  are  in  turn  the  natural  resultant  of  its 
racial  energies  which  unfold  in  a  given  telluric  medium;  and  by 
admitting  in  the  second  place  that  the  moral  sentiments,  ideas, 
and  political  and  legal  institutions  also  have  their  own  relatively 
autonomous  existence,  i.  e.  within  the  limits  of  the  variations  of 
a  given  economic  constitution  on  which  they  also  have  their  more 
or  less  superficial  reaction  but  which  are  nevertheless  worthy  of 
being  noticed.' 

^  Ferri,  "Socialismo  e  criminalita." 

*  Ferri,  "Sociologie  et  socialisme,"  in  the  "  Annales  de  I'lnstitute  intemationale 
de  sociologie"  (Paris,  1894),  I,  p.  157. 

^  Ferri,  "Socialismo  e  scienza  positiva"  (Rome,  1894),  p.  158.  As  an  example, 
proven  by  positivistic  observation,  of  the  influence  of  soil  and  race  on  the  social 
constitution  and  on  individual  physio-psychic  nodalities,  see  Desmoulins,  "Les 
Frangais  d'aujourd'  hui.    Les  types  sociaiuc  du  nudi  etdu  centre"  (Paris,  1898). 


§79]  FUNDAMENTAL  OBJECTIONS  TO  DATA  119 

§  78.  Social  Abnormality  of  Juridical  Inadaptation  as  Basis  of  Origin  and 
Nature  of  Delinquency. 

A  view  has  recently  been  urged  which  is  in  part  a  repetition  of 
the  accurate  and  well-known  idea  that  the  insane,  the  defectives, 
and  the  criminals,  are  beings  relatively  or  absolutely  unfit  for 
social  life  and  which  is  in  part  an  evident  derivation  from  the 
Marxian  doctrines  on  the  struggle  of  the  classes  for  economic, 
and,  hence,  for  political,  supremacy.  This  view  is  that  the  delin- 
quent is  nothing  other  than  an  individual  who  has  not  known  how 
or  who  has  not  been  able  to  adapt  himself  to  the  penal  laws  which 
look  to  the  defense  of  the  interest  of  the  dominant  class  at  each  his- 
torical moment.  And  this  defect  of  adaptation  ends  in  either 
direct  revolt  or  in  the  degeneracy  of  individuals  condemned  to 
an  inferior  life.  It  will  be  more  appropriate  to  speak  of  this 
opinion  in  treating  of  penal  justice  and  social  defense.  It  will 
here  suffice  to  call  attention  to  the  inadmissable  omission  of  the 
biological  factor,  since  I  can  here  again  repeat:  How  does  it  happen 
that  of  a  hundred  individuals  who  are  "non-adapted,  or  degenerate 
because  of  lack  of  adaptation  to  the  juridical  organization,"  only 
ten  commit  crimes  while  the  others  commit  suicide  or  become 
insane.'*  Further,  of  what  use  is  this  hypothesis,  when  there  is  a 
question  of  crimes  which  are  not  directed  against  the  politico- 
social  organization  or  which  are  committed  to  the  prejudice,  not 
of  the  dominant  classes,  but  of  the  class  of  the  delinquents? 
And  finally,  when  the  penal  code  punishes  homicide  and  assault 
without  distinction  of  persons,  for  instance,  where  the  delinquent 
and  his  victim  are  both  paupers,  how  can  it  be  said  that  it  pro- 
tects only  or  preferentially  the  interests  of  the  dominant  class? 

§  79.  Social  Abnormality  of  Complex  Social  Influences  as  Basis  of  Origin 
and  Nature  of  Delinquency. 

I  consider  the  opinion  inaccurate  and  prejudiced  which  holds 
that  crime  is  the  exclusive  or  even  the  principal  effect  of  social 
environment.  Tarde  sums  it  up  by  saying:  "A  given  social  organ- 
ization, a  given  criminality."  ^    This  opinion,  originated  by  the 

1  Tarde,  "Criminalite  comparee,"  p.  28.  In  connection  with  Tarde,  the  con- 
tradiction into  which  he  has  recently  fallen  is  remarkable.  In  the  matter  of  crimi- 
nality, he  who  preached  the  social  environment  as  the  sole  factor  of  crime  so 
much,  reaches  the  point  of  examining  the  social  transformism  of  de  Greef  (Paris, 
1895),  where  the  latter  rightly  maintains  the  theory  that  social  transformations 
are  not  the  work  of  individuals  (great  men)  but  that  they  have  their  deep  causes 


120  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  80 

Italians,  then  taken  up  by  the  French  and  more  recently  also  by 
the  Germans/  without  any  new  syllogistic  argument  and  with 
a  complete  absence  of  observation  of  delinquents  and  the  de- 
terminant causes  of  their  anti-social  existence,  however,  has 
appeared  very  seductive,  not  only  because  of  its  generaUty  but  also 
because  it  escapes,  they  claim,  the  fatalism  of  the  anthropological 
social  school.  In  effect,  they  say,  if  crime  is  but  the  exclusive 
effect  of  atavism  and  pathology,  society  can  do  little  or  nothing 
to  reduce  its  intensity  and  extension.  On  the  contrary,  in  affirm- 
ing that  crime  is  essentially  a  social  phenomenon,  there  is  also 
affirmed  the  comforting  possibility  of  reducing  or  even  eliminating 
it  by  improving  or  changing  social  conditions.  The  opinion  is 
accurate  in  itself,  but  there  is  no  justification  for  opposing  it  to  the 
positivist  criminal  school,  which  has  never,  even  through  its  most 
specially  anthropological  representatives,  asserted  that  crime  is 
always  and  solely  a  biological  phenomenon. 

§  80.  Biologico-Social  Abnormality  as  Basis  of  Origin  and  Nature  of 
Delinquency. 

Yet,  aside  from  this,  it  is  evident  that  this  idea  does  not  explain 
all  the  forms  of  delict  and  all  the  categories  of  delinquents.  It 
considers   too   exclusively   chance  criminality    ("criminalite   oc- 

in  the  economic  and  moral  organization  of  society.  Tarde,  who  insists  in  holding 
to  his  psychological  explanation  of  social  facts  (according  to  which  all  human  evo- 
lution depends  on  invention  and  imitation,  as  if  those  were  not  superficial  mani- 
festations of  individual  and  social  life,  as  I  have  pointed  out  in  agreement  with 
Durkheim),  then  comes  to  the  question  whether  "to  be  content  with  terms  like 
"physical  medium  or  social  medium  or  even  economic  factor  —  entities  which  signify 
nothing  or  which  may  be  resolved  into  accumulated  individual  actions  —  is  pro» 
fundity  or  blindness."     "fitudes  de  psychologic  sociale"  (pp.  98-99). 

And  against  Durkheim  he  strengthens  the  dose  by  saying,  "It  is  a  fetish,  a 
'deus  ex  machina'  of  which  the  newer  sociologists  make  use  whenever  embar- 
rassed, and  it  is  time  to  brand  this  abuse  which  is  really  becoming  disquieting.  This 
explicative  talisman  is  the  medium!  With  this  word  uttered,  all  is  said.  The 
medium  is  the  formula  for  everything  and  its  illusory  depth  seems  to  conceal  the 
emptiness  of  the  idea"  (p.  78).  Very  well:  the  observation  is  partly  true. 
But  it  is  especially  so  for  those  who,  in  speaking  of  the  medium  in  sociology,  forget 
the  biological  bases  of  human  facts. 

^  Turati,  "Le  delitti  e  la  questione  sociale"  (Milan,  1883),  replies  to  my  articles 
later  gathered  in  the  volume  on  "Socialismo  e  criminalita";  Battaglia,  "La  di- 
namicadel  delitto"  (Naples,  1886);  Cofejanm, "  Sociologia  criminale" ;  Lacassagne, 
Tarde,  Topinard,  Manouvrier  in  the  publications  cited  above;  Boer,  "Der 
Verbrecher"  (Leipzig,  1893),  p.  408;  GumpUncicz,  "Das  Verbrechen  als  socials 
Erscheinung,"  in  "I'Aula"  (1895),  No.  14.  See  also,  Tcennies,  Tavares,  Ferri,  Go- 
to falo,  Puglia,  on  "Le  crime  comme  ph^nomene  social,"  A.  S.  S.  S.  (Paris,  1896), 
II,  pp.  387  et  seq. 


§80]  FUNDAMENTAL  OBJECTIONS  TO  DATA  121 

casionelle")  in  which  we  ourselves  from  the  very  beginning  have 
always  maintained  the  predominance  of  the  social  factors.  A 
sufficient  proof  of  this  is  our  theory  of  the  equivalents  for  penalty, 
which  we  will  take  up  at  a  later  point.^  This  oft-repeated  affir- 
mation puts  the  question  badly  and  the  solution  is  still  worse. 
It  is  the  same  as  if  one  were  to  ask  whether  the  air  or  the  lung 
contributed  most  to  the  hfe  of  a  mammal.  They  both  contribute 
and  that  is  the  whole  truth. 

Let  us  not  be  told  that,  admitting  this,  the  social  factors  are 
always  the  real  and  first  causes,  because  it  is  from  them  that 
individual  organic  and  psychic  anomalies  and  degeneration  are 
derived  by  hereditary  transmission:^  this  would  be  a  Byzantine 
quibble  like  the  discussion  of  the  priority  of  the  egg  or  the  hen. 
In  the  indissolubiUty  and  infinite  complexity  of  natural  causes 
and  ejffect,  it  is  an  illusory  pretension  to  wish  to  find  first  causes, 
since  it  is  certain  that  every  cause  is  also  an  effect  and  every  effect 
in  turn  becomes  a  cause.  Moreover,  bearing  in  mind  what  I  have 
said  above;  namely,  that  economic  and  social  conditions  are, 
in  their  turn,  a  resultant  of  racial  energies  in  a  given  telluric 
medium,  and  that  there  is  a  relatively  autonomous  develop- 
ment of  each  order  of  social  facts  in  the  field  of  economic  condi- 
tions, —  one  sees  that  it  is  more  positivistic  to  admit  and  define 
by  scientific  observations  the  respective  and  concomitant  in- 
fluences of  the  different  factors  of  crime,  were  it  only  because  this 
bio-sociological  diagnosis  of  crime  does  not  take  anything  away 
from  the  truth  of  the  socialistic  prognosis,  according  to  which,  in 
a  quite  different  economic  and  social  environment,  wherein 
every  human  being  would  be  assured  really  human  conditions  of 
life  and,  hence,  the  development  of  his  personality,  the  epidemic 
sources  of  crime  would  be  dammed  up,  eliminating  degeneracy 
through  poverty  in  the  masses  and  degeneracy  through  parasitism 
in  the  few. 

'  Post.  By  equivalents  for  penalties,  or  more  exactly,  measures  to  be  substi- 
tuted for  penalties  ("  sostitutivi  penali"),  the  author  supposes  the  writer  under- 
stands the  measures  which  can  be  employed  in  the  place  of  penalties,  for  the  defense 
of  society,  by  preventing  crimes  and  by  making  them  more  rare. 

*  Loria,  "Le  teoria  economica  della  constituzione  politica"  (Turin,  1886). 
See  also  Mucci,  "II  fattore  sociale  nella  delinquenza  secondo  la  scuola  positiva" 
(Sansevero,  1898);  Stinca,  "Le  milieu  social  comme  facteur  pathologique,"  E.  N. 
(October,  1894). 


122  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§81 

§  81.   Crime  is  a  Phenomenon  of  Biologico-Social  Abnormality. 

Hence,  in  conclusion,  we  return  to  our  fundamental  assertion 
which  should  control  not  only  criminal  anthropology  but  all  the 
inductions  of  criminal  sociology:  that  crime,  like  all  other  human 
acts,  is  a  phenomenon  of  complex  origin,  both  biological  and 
physio-social,  with  different  modalities  and  degrees  according  to 
the  different  circumstances  of  persons  and  things,  of  times  and 
places.^ 

^  It  is  important  in  this  connection  to  say  a  few  words  of  two  new  scientific 
drifts  of  thought  pertaining  to  the  relations  between  biology  and  sociology:  the 
neo-Lamarckism  and  the  anthropo-sociology.  Neo-Lamarckism,  which  adds  to 
the  purely  Darwinian  theories  of  natiu-al  selection  by  survival  of  the  fittest  the 
theory  of  Lamarck  on  the  influences  of  the  medium  and  of  the  individual  and 
hereditary  adaptation  of  the  beings  living  in  this  medium,  —  is  a  very  accurate 
conception  which  has  utility  in  the  correction  and  completion  of  what  was  exclusive 
and  unilateral  in  Darwinism. 

This  doctrine,  while  confirming  the  biological  base  of  social  phenomena  yet 
emphasizes  the  physio-psychic  variability  of  individuals  and  species  according  to 
the  variations  of  the  medium  and,  hence,  gives  a  scientific  foundation  to  the  theory 
of  scientific  socialism  —  scientific  socialism  is  a  theory  which  maintains  that 
so-called  human  nature,  declared  by  some  as  incompatible  with  the  socialist  regime 
of  collective  property,  is  not  an  immutable  entity,  but  is,  on  the  contrary,  the 
product  of  biological  factors  combined  with  the  influences  of  medium  and  there- 
fore variable  with  the  latter. 

(See  BUchner,  "Lamarck,  Cuvier,  Darwin,  et  les  neo-lamarckistes,"  R.  R. 
(1  Aug.  1897);  Setti,  "D  lamarchismo  nella  sociologia"  (G6nes,  1896);  Perrier, 
"La  reponse  de  M.  Spencer  a  Lord  Salisbury,"  in  the  "Revue  intemationelle  de 
sociologie"  (Jime,  1896);  De  Greef,  "Transformisme  social"  (Paris,  1895),  p. 
422;  Kunstler,  "Lifluence  du  milieu  sur  revolution  individuelle,"  R.  S.  (19  June, 
1897);  Vaccaro,  "Basi  del  diritto  e  dello  stata."  Introduction;  Fagcs,  "L'evolu- 
tion  du  Darwinisme  biologique,"  R.  I.  S.  (July,  1898);  Lombroso,  "Les  races  et 
le  miheu  ambiant,"  in  the  R.  S.  (23  April,  1898). 

Anthropo-sociology  (aside  from  the  studies  on  social  selection  of  which  I  shall 
speak  later),  on  the  contrary,  represents  an  exaggeration,  in  an  anthropometric 
rather  than  anthropolo^cal  sense  by  reducing  all  the  causes  which  determine 
social  evolution  to  the  cephalic  index  of  the  two  alleged  ethnic  elements  of  Europe 
("homo  europaeus,"  "homo  alpinus,"  besides  the  "mediterraneus").  It  asserts 
that  the  brachycephalic  represent  progressive  energv'  and  that  the  dolico-cephalic 
represent  conservative  inertia.  It  admits,  however,  that  the  constant  elevation 
of  the  cephalic  index  is  a  law  of  anthropo-sociological  evolution.  Although  this 
drift  of  thought  represents  a  recall,  which  is  not  useless,  to  the  biological  or 
anthropological  foimdation  of  social  facts,  it  nevertheless  seems  evident  to  me 
that  in  its  formulae,  especially  as  given  by  Lapouge,  it  represents  a  strange  mis- 
conception of  the  complexity  of  bio-social  phenomena  which  is  the  most  certain 
induction  of  contemporary  science.  It  does  not  seem  to  me  therefore  destined  (at 
least  in  this  direction  where  it  has  made  the  most  stir)  to  have  a  lasting  success, 
and  it  will  doubtless  have  the  same  fate  as,  in  an  analogous  field,  did  the  hj'potheses 
of  Weissman  whose  vogue  is  past.  See  Ammon,  "Die  natiirliche  Auslese  beim  Men- 
schen"  (Jena,  1893);  Zapouj^e,  " Les  selections  sociales"  (Paris,  1896);  "Les  lois 
fondamentales  de  I'anthropo-sociologie,"  R.  S.  (30  October,  1897),  and  R.  I.  S. 


§81]  FUNDAMENTAL  OBJECTIONS  TO  DATA  123 

We  have  a  last  observation  to  make  in  this  connection.  Cola- 
janni  thought  he  struck  a  fearful  blow  at  the  theory  of  anthro- 
pological factors  in  crime,  by  establishing  (but  with  many  grave 
errors  which  I  have  pointed  out  in  my  Italian  editions)  that  "the 
criminality  of  a  region  in  Italy  is  deployed  in  the  inverse  ratio  to 
organic  degeneracy."  In  similar  fashion,  Durkheim,  in  order  to 
deny  that  the  psychopathic  conditions  of  the  individual  are 
among  the  causes  of  suicide,  remarks  that  the  frequency  of  suicide 
is  in  inverse  ratio  to  that  of  insanity.  Now  both  of  these  observed 
facts,  to  the  extent  that  they  are  true,  are  explicable  by  the  law 
of  compensation  between  both  forms  of  psychopathic  condition. 
The  pathological  or  degenerative  condition  which  shows  itself 
by  crime  does  not  show  itself  under  other  forms;  or  vice  versa,  if 
it  manifests  itself  by  suicide  or  insanity  or  ordinary  disease,  it 
in  that  way  eliminates  the  sources  of  criminality.^  Goethe  has 
expressed  this  in  an  admirable  synthesis  which  applies  alike  to 
individuals  and  to  the  population  of  a  whole  region  and  to  the 
collectivity  of  each  social  class.  He  says:  "Since  the  budget  of 
Nature  is  limited,  if  she  expends  too  much  energy  in  one  direction, 
she  economizes  in  another." 

We  have  thus  finished  the  examination  of  the  principal  objec- 
tions which,  in  a  more  or  less  positivistic  or  scientific  field,  have 
been  urged  against  the  method,  the  fomidation,  and  the  principal 
data  of  criminal  anthropology.  We  may  therefore  conclude  that, 
apart  from  the  inevitable  partial  corrections,  none  of  the  criticisms 
made  is  able  to  take  from  the  data  of  criminal  anthropology 
that  value  which  it  is  quite  capable  of  demonstrating  by  facts 
while  progressing  and  becoming  more  perfect  every  day :  and  this, 
in  spite  of  all  the  criticisms  of  pure  ratiocination,  proves  that  it 
is  advancing,  notwithstanding  inaccuracies  and  partial  errors, 
along  the  great  highway  of  positivistic  and  fruitful  truth.  One- 
sidedness  is  the  organic  defect  of  all  the  objections  made  to  the 
data  of  criminal  anthropology.     The  critics  have  always  wished 

(November,  1897);  Ammon,  "Histoire  d'une  idee  d'anthropo-sociologie,"  in  the 
"Rundschau"  (November,  1896),  and  in  the  R.  I.  S.  (March,  1898);  and  FouilUe, 
ibid,  (May,  1898);  Winiarsky,  "L'anthropo-sociologie,"  in  the  "Devenir  social" 
(March,  1898);  Closson,  "La  hierarchic  des  races  europeenes"  R.  I.  S.(June,  1898); 
Livi,  "La  distribuzione  geographica  dei  caraterri  antropologica  in  Italia,"  in  the 
R.  I.  S.  (July,  1898). 

And  for  criticism,  Loria,  L'antropologia  sociale,"  in  the  "Rivista  modema 
(December,  1898). 

'  A  similar  idea  is  maintained  by  Marandon  de  Monty  el,  "Rapports  de  la  cri- 
minalite  et  de  la  degenerescence,"  A.  A.  C.  (May,  1892). 


124  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§81 

to  assume,  for  the  convenience  of  controversy,  that  the  new 
science  considers  crime  as  a  solely  and  exclusively  biological 
phenomenon;  whereas,  from  the  beginning,  its  founders,  while 
provisionally  separating  for  exigent  reasons  of  study  this  or  that 
side  of  the  criminal  phenomenon,  have  nevertheless  always 
affirmed  its  complex  natural  determination,  both  in  the  biological 
order  and  in  the  physical  and  social  orders.  Criminal  sociology  is 
inseparable  from  criminal  biology;  and  such,  affirmatively,  is 
the  last  result  of  our  study  .^ 

^  This  is  also  what  is  thought  by  Serffi,  "Attomo  alia  sociologia  criminale," 
in  the  R.  I.  S.  (November,  1897),  and  in  "I  dati  antropologici  in  sociologia,  id. 
(Jan.,  1898);  and  by  De  Luca,  "  Antropologia  criminale  e  scuola  positiva,"  S.  P. 
(January,  1898). 


CHAPTER  III 

NATURAL  CLASSIFICATION  OF  CRIMINALS 

Precedent.  Habitual  and  occasional  criminals.  Five  fundamental  categories: 
Insane,  born,  habitual,  occasional,  and  by  passion.  Gradation.  Numeri- 
cal proportions.     Other  classifications.     Conclusions. 

§  82.  History  of  the  Distinction  of  Criminal  Categories  Prior  to  Lombroso. 

As  I  have  said,  Lombroso,  in  the  first  and  even  in  the  second 
edition  of  his  work,  had  attributed  indiscriminately  to  the  whole 
class  of  delinquents  the  sum  total  of  abnormal  characteristics. 
He  thus  made  the  criminal  man,  "uomo  delinquente,"  a  sort  of 
abstract  type  like  Quetelet's  average  man,  "homme  moyen," 
On  the  contrary,  it  has  been  generally  observed  that  only  some  of 
the  criminals  present  the  sum  of  abnormalities,  and  that  it  is  there- 
fore necessary  to  recognize  different  categories  among  them,  in 
order  exactly  to  define  the  real  range  of  this  anthropological  ma- 
terial. It  is  true  that  this  idea  of  the  distinction  to  be  made 
among  criminals  was  announced  by  several  observers  even  before 
Lombroso,  but  it  was  received  in  criminal  sociology  only  when 
my  criticism  of  Lombroso 's  work  afforded  occasion  explicitly  to 
insist  on  it  and  to  make  it  less  incomplete. 

Before  Lombroso's  time,  I  find  that  Gall,  for  example,  as  early 
as  1825,  speaking  of  remorse  in  criminals,  notes  the  distinc- 
tion between  those  who  are  carried  away  by  passion  and  those 
who  obey  innate  instincts.^  Toulmouche,  in  1836,  and  a  little 
earlier  Diey,  gave  the  first  indications  of  a  distinction  between 
delinquents  who  have  been  urged  to  crime  by  poverty,  ignorance, 
evil  counsel,  or  violent  passions,  and  those  who  are  originally 
vicious,  dominated  by  a  sort  of  instinct  for  fraud,  theft,  and  other 
crimes,  —  men  "who  always  resist  the  controlling  influences  of 
any  moral  regime."  ^ 

In  1840,  Fregier,  relying  upon  the  memories  of  Vidocq,  who 

*  Gall,  "Sur  les  fonctions  du  cerveau"  (Paris,  1825),  I,  352. 

^  Toulmouche,  "Travail  historique  statistique,  medical  hygi^nique  et  moral 
sur  la  maison  centrale  de  Rennes,"  in  the  "Annales  d'hygiene  publique"  (1835), 
XIV,  p.  54. 

125 


126  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§82 

was  a  convict  before  he  was  a  police  agent/  distinguished  differ- 
ent kinds  of  criminals,  describing  the  various  criminal  specialties 
and  grouping  them  into  three  great  categories :  professional  thieves, 
chance  thieves  ("voleurs  d'occasion")  through  weakness  of  char- 
acter, and  thieves  through  necessity.  And  he  finally  divided  them 
into  two  groups  by  their  greater  or  lesser  repugnance  to  the  shed- 
ding of  blood  in  the  commission  of  their  thefts.^  This  purely 
descriptive  classification  was  reproduced  and  supplemented  by  Du 
Camp,  who  separates,  according  to  the  jargon  of  the  criminals 
themselves,  the  "basse  pegre"  (non-sanguinary  and  non- violent 
thieves)  from  the  "haute  pegre,"  represented  by  the  "escarpe," 
who  is  "the  type  of  a  cold  and  systematic  tendency  toward  as- 
sassination," who  kills  first  and  then  robs.*  Lauvergne  also  dis- 
tinguishes different  categories  in  murder  and  rape  according 
as  the  crime  has  been  committed  through  impulse  ("entraine- 
ment")  or  an  imdeveloped  will  ("volonte  arretee"),  or  through 
innate  brutal  instincts.*  Then  come  the  classifications  of 
Ferrus,^  Despine,  Thompson,  Maudsley,  and  Nicholson,  who, 
taking  intellectual  development  as  the  distinctive  criterion,  reach 
a  distinctive  between  accidental  and  occasional  delinquents  and 
real  and  habitual  criminals,  a  truly  fundamental  distinction 
which  was  afterwards  taken  up  by  many  other  observers  of  prison 
life,  such  as  Valentini,  Bittenger,  Sewichey,  Sollohub,  Hastings, 
Du  Cane,  Guillaume,  Virgilio,  Morselli,  Michaux,  Petit,  and 
Hurel.« 

^  "Memoires  de  Vidocq"  (Paris,  1828),  and  "Reflexions  sur  les  crimes  et  les 
recidives"  (Paris,  1844). 

*  FrSgier,  "Des  classes  dangereuses  de  la  population"  (Brussels,  1840). 

^  Du  Camp,  "Paris,  ses  organes,  ses  fonctions  et  sa  vie,"  in  the  "Revue  des 
Deux  Mondes"  (1869),  and  (Paris,  1875).  vol.  Ill,  cap.  XII,  §  2. 

*  Lauvergne,  "Les  formats"  (Paris,  1841),  Caps.,  IV,  VIII. 

*  Ferrus,  "Des  prisonniers"  (Paris,  1850),  p.  185;  Despine,  "Psychologic 
naturelle"  (Paris,  1868),  I,  pp.  XII.  XV;  II,  pp.  1,  169,  279;  Thomson,  "The 
Psychology  of  Criminals,"  (1870);  Maudsley,  "Responsibility  in  Mental  Disease," 
pp.  30-33;   Nicholson,  "The  Morbid  Psychology  of  Criminals"  J.  M.  S.  (1872), 

p.  222,  and  (July,  1874),  pp.  167,  168. 

*  Valentine,  "Das  Verbrecherthum  im  Preussischen  Staate  nebst  Vorschlagen  zu 
seiner  Bekampfung"  (Leipzig,  1879),  pp.  110-165;  Bittenger  Sewichey,  "How  far  is 
Society  responsible  for  crime?"  R.  C,  I,  156;  Sollohub,  "La  questione  carceriara 
in  Russia,"  id..  Ill,  77;  Hastings,  Address  before  the  Society  for  the  Advance  of 
the  Social  Sciences;  Du  Cane,  "Judicial  statistics"  (1873),  id.,  V.  155;  "The 
Pimishment  and  Prevention  of  Crime"  (London.  1885);  Guillaume,  "lie  cause  prin- 
cipali  dei  criminali  ed  il  mezzo  piu  efficaceper  prevenirli,"  ibid.,  VI,  46;  "Comptes 
rendus  du  congres  penitentiare  de  Stockholm"  (Paris,  1879),  I,  469;  Virgilio, 
"Sulla  natura  morbosa  del  delitto,"  R.  C,  IV,  335-336;  Morselli,  "Del  suicidio 
dei  delinquenti,"  R.  F.  (1875),  p.  247;  Michaux,  "  Etude  sur  la  question  des  peines  " 


§83]      NATURAL  CLASSIFICATION  OF  CRIMINALS         127 


§  83.  Conclusions  from  History  of  Distinctions  of  Criminal  Categories  Prior 

to  Lombroso. 

From  these  labors  which  preceded  the  work  of  Lombroso  we 
may  detach  three  instructive  facts. 

A.  The  persistence,  especially  among  men  of  experience,  direct- 
ors of  prisons  or  prison  doctors,  of  the  idea  that  there  are  always 
some  of  the  delinquents  who  are  incorrigible  and  unyielding  to 
the  action  of  any  penitentiary  regime,  mild  or  severe.  This  idea, 
while  combated  by  moralists  and  jurists,  far  removed  from  the  ob- 
servation of  prisoners,  has  been  given  the  most  positive  confirmation 
and  the  most  luminous  explanation  by  anthropological  researches. 

B.  The  supremacy,  in  the  different  classifications  of  delinquents, 
of  criteria  of  simple  prison  discipline  or  purely  descriptive  variety, 
to  the  detriment  of  criteria  really  based  on  the  origin  and  causes 
of  crime  It  is  the  latter  that  are  important  to  the  criminal  so- 
ciologist, since  he  must  seek  the  causes  to  find  the  remedies. 

C.  The  persistence  of  the  intuitive  distinction  between  the  two 
great  categories  of  habitual  delinquents  and  occasional  delinquents. 
If,  as  Sergi  ^  says,  the  character  of  every  individual  is  the  result, 
so  to  speak,  of  the  superposition  of  different  strata,  from  the 
primitive  and  savage  to  the  more  recent  and  civilized,  one  can 
easily  understand  how,  in  present  society,  the  individuals  whose 
organic  and  psychic  constitution  is  made  principally  of  the  deeper 
and  more  anti-social  strata,  must  show  in  a  permanent  way,  a 
corresponding  activity,  which  is  the  index  and  the  effect  of  their 
constitution;  and  hence  they  are  the  delinquents  by  congenital 
tendency,  the  incorrigibles.  On  the  contrary,  the  individuals 
whose  constitutions  are  normally  formed,  in  greater  part,  from 
the  more  recent  and  social  strata,  are  sometimes,  in  case  of 
extraordinary  stress  ("entraSnement"),  overthrown  by  the  vol- 
canic eruption,  as  it  were,  of  the  deep  anti-social  strata  and 
thus  become  accidental  and  occasional  delinquents.  Even 
among  the  Romans  there  was  an  inkling  of  this  fundamental 
distinction^  and  later  in  the    Medieval    theory  of    the   "con- 

(Paris,  1874),  p.  77;  Petit,  "Rapport  sur  la  suppression  de  la  recidive,"  in  the 
"Bulletin  de  la  Societe  g6neraledes  prisons"  (Paris,  1878),  II,  168;  Hurel,  "Coup 
d'  oeil  psychologique  sur  la  population  de  la  maison  de  Gaillon,"  A.  M.  P.  (1875), 
I,  pp.  161  and  374. 

^  Sergi,  "La  stratificazione  de  la  delinquenza,"  R.  F.  S.  (April,  1883),  and 
Ferri,  "Socialismo  e  criminalita,"  Cap.  Ill  (Education  and  Criminality). 

*  Carmignani,  "Teoria  della  leggi  di  scienza  sociale,"  1,  III,  Cap.  XI,  2. 


128  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§83 

suetudo  delinquendi,"  when  different  Italian  and  French  ^  stat- 
utes, Article  161  of  the  Carolina  and  the  jurisprudence  of  the 
practitioners  '  had  established  the  death  penalty  for  theft  thrice 
repeated,  because,  as  Farinaccio  said,  "delictorum  frequentia 
delinquentis  incorreggibilitatem  denotat."  This  distinction  has 
been  embodied  in  the  modern  law  of  England,^  a  coimtry  where 
it  is  not  necessary  to  surmount  the  authority  of  strongly  developed 
juridical  theories  and  where,  consequently,  the  practical  necessities 
of  life  are  more  promptly  impressed  upon  the  lawmakers  of  a 
positivist  people.  In  fact,  there  have  already  been  realized  in 
that  country  criminal  reforms  which  would  seem,  and  do  seem, 
to  us  Latins  and  men  of  theory,  like  sacrilegious  encroachments 
upon  the  abstract  principles  which  we  have  imposed  upon  ourselves 
and  which  we  would  see  triumph  even  over  the  evident  necessities 
of  every-day  life.  Finally,  this  distinction  has  been  judged 
natural  by  some  theoretical  criminalists  far  removed  from  anthro- 
pology, such  as  Rossi,*  Carrara,  Ortolan,  Wahlberg,  Brusa;  but 
nevertheless,  guided  only  by  an  abstract  intuition  and  a  lesser 
familiarity  with  the  positivist  method,  they  have  been  unable  to 
draw  from  it  any  systematic  conclusions  helpful  to  the  social 
defense  against  crime. 

These  are  conclusions  of  fact  drawn  from  the  first  observations 
on  crime  and  criminals  that  now  confirm  once  more  my  induction 
on  the  different  categories  of  criminals,  an  induction  by  which 
the  scientific  and  practical  range  of  anthropological  data  can  be 
exactly  demonstrated. 

*  Hoorebeke,  "De  la  recidive"  (Ghent,  1846),  p.  75. 

*  Claro,  "De  furtis";  Gandino,  "De  furta  et  latris";  Gothofredo,  "In  legibns 
3,  Cod.  de  episco.  aud.;  Farrinaccio,  "Practio  criminalis,"  Quaest.  23;  "De  delictis 
et  poenis,"  Quaest.  18. 

3  Habitual  Criminals  Act  (1869),  and  Prevention  of  Crimes  Act  (1871),  which 
put  imder  police  surveillance  all  persons  of  evil  life,  recidivists,  etc.  In  1856,  the 
Parliamentary  Commission  of  Inquiry  on  the  results  of  the  law  of  1853  relative 
to  conditional  liberty,  recommended  that  habitual  delinquents  should  be  excluded 
from  the  benefits  of  the  ticket  of  leave.  Nocito,  "Delia  liberty  condizionale" 
(Rome,  1880),  p.  85.  Even  in  the  French  law  on  the  deportation  of  recidivists 
(May,  1885),  and  in  the  recent  Italian  law  on  habitual  recidivists,  this  distinction 
has  been  recognized,  although  in  an  incomplete  way.  The  distinction,  as  we 
shall  see  in  Chap.  IV,  has  always  impressed  itself  on  the  later  penal  laws  (condi- 
tional sentence,  conditional  liberation,  imprisonment  for  an  indeterminate  period, 
etc.). 

*  Rossi,  "Trattato  di  diritto  penale"  (Turin,  1856),  1,  III;  Cap.  IV  and  VIII, 
pp.  450  and  413;  Carrara,  "Programma,"  §1067;  Ortolan,  "Elements  de  droit 
p6nal,  1187;  Wahlberg,  "Das  Mass  und  der  mittlere  Mensch  im  Strafrecht"  (Vi- 
enna, 1878),  and  in  "Gesammelte  Kleinere  Schrif ten,"  1, 136  and  111,55;  his  report 


§85]      NATURAL  CLASSIFICATION  OF  CRIMINALS         129 

§  84.  Applicability  of  Anthropological  Data  Restricted  to  Certain  Categories. 

From  the  study  of  works  on  criminal  anthropology  and  primarily 
from  my  systematic  observations  of  convicts  from  the  psychic 
point  of  view,  I  have  derived  the  conviction  that  these  anthro- 
pological postulates  do  not  apply,  at  least  in  their  complete  and 
characteristic  entirety,  to  all  those  who  commit  crime.  They 
apply,  by  accumulating,  to  only  a  certain  number  of  these,  who 
may  be  called  incorrigible,  habitual,  or  born  criminals.  Outside 
of  these  is  the  class  of  occasional  delinquents,  in  whom  the  ana- 
tomical, pathological,  and  psychic  characteristics  which  give  the 
typical  figure  that  Lombroso  calls  criminal  man,  "uomo  delin- 
quente,"  are  not  found  or  are  found  only  in  lesser  numbers.  This 
separation,  which  I  indicated  as  early  as  1878  in  a  criticism  of 
Lombroso's  work,^  and  more  fully  developed  in  an  article  pub- 
lished in  1880,^  can  be  demonstrated  conformably  to  the  positivist 
method  by  two  orders  of  proofs:  1st,  by  the  synthetic  results  of 
anthropological  researches  on  delinquents;  2d,  by  statistical  data 
on  habitual  crime  ("recidive")  and  on  the  forms  of  delinquency 
heretofore  studied  by  the  anthropologists.  As  to  the  results  of  the 
researches  of  criminal  anthropology,  they  show  that  in  the  mass  of 
delinquents,  there  are  from  fifty  to  sixty  per  cent,  who  have 
only  a  few  organic  and  psychic  anomalies,  while  about  a  third 
show  an  extraordinary  number  and  a  tenth  show  none  at  all. 

§  85.  Statistics  of  Criminal  Relapse. 

As  to  the  statistical  data,  the  first  and  most  important  which 
present  themselves  are  those  which  relate  to  habitual  crime. 
This  is  the  last  manifestation  of  individual  tendencies  and,  hence, 
of  the  differing  capacity  of  delinquents  for  crime,  although  in  the 
phenomenon  of  criminal  relapse,  a  large  part  is  due  to  the  social 
factors,  as  we  shall  see  in  treating  of  habitual  criminals.     With 

to  the  Congress  of  Stockholm  on  the  methods  of  attacking  recidivity,  C.  R.  I. 
App.,  p.  169.  Professor  Wahlberg,  of  all  the  classical  criminalists,  has  drawn  the 
most  practical  juridical  consequences  from  this  distinction.  He  reconunends 
in  his  work,  "Das  Mass,"  not  only  a  special  treatment  of  reclusion  for  habitual 
criminals  who  form  a  category  "sui  generis,"  but  also  a  special  measure  of  pun- 
ishment. Adhering  to  the  old  idea  of  moral  responsibility,  but  with  a  practical 
criterion,  he  says:  "Habitual  crime  is  the  expression  of  a  psycho-moral  degeneracy 
in  the  evildoer  which  has  become  permanent  and  as  such  is  essentially  diflFerent, 
both  in  culpability  and  in  punishability,  from  the  evil  onset  of  the  occasional 
delinquent;   Brusa,  C.  R.  (Stockholm,  1879),  I,  463,  620. 

^  Ferri,  "Studi  critici  suU'Uomo  delinquente  di  Lombroso,"  in  the  "Rivista 
europea"  (1878),  p.  283. 
I        *  Ferri,  "Diritto  penale  ed  antropologia  criminale,"  A.  P.  (1880),  I,  476. 


130  DATA  OF  CRIMmAL  ANTHROPOLOGY  [§  86 

reference  to  the  statistics  of  criminal  relapse  we  are  at  a  disad- 
vantage because  of  the  scarcity  and  unreliability  of  the  materials, 
due  to  differences  of  legislation,  methods,  and  means  of  statistical 
study  in  various  countries  which  do  not  always  afford  even  the 
still  imperfect  reliabihty  of  the  system  of  judical  record  bureaus  in- 
troduced in  Italy  in  1865,  or  of  that  of  the  Danish  system  of  PoUce 
Registry.*  Not  only  was  "the  Congress  of  London  forced,  for 
want  of  documents,  to  leave  many  questions  unsolved,  especially 
with  respect  to  relapse,"  as  Yvemes  remarked  at  Stockholm,  but 
even  to-day  we  still  see  as  between  one  country  and  another 
certain  differences  in  this  matter  the  real  import  of  which  escapes 
us.^  Li  bringing  together  all  the  material  that  I  found  scattered 
among  scientific  works  and  official  statistics  for  my  study  of  penal 
law  and  criminal  anthropology,  I  was  able  to  offer  some  outline 
of  international  statistics  on  criminal  relapse;  yet  even  to-day, 
after  studying  other  publications,  such  as  the  report  of  Sterhch,' 
and  the  "Enquete  sur  la  recidive  en  Eurojje,"  made  by  the  "So- 
ciete  generale  des  prisons  en  France,"  *  I  would  be  unable  to  enrich 
it  with  any  important  data:  therefore  I  do  not  consider  its  repro- 
duction necessary. 

§  86.  Criminal  Relapse  the  Rule. 

Although  it  is  impossible  to  fix  the  maximum  of  recidivists, 
it  may  be  said  as  an  approximation  which  is  certainly  wathin  the 
actual  figures,  that  criminal  relapse  generally  oscillates  around  a 
percentage  of  from  fifty  to  sixty  in  Europe.  I  say,  "certainly 
within  the  actual  figures,"  because,  for  instance,  while  the  decen- 
nial statistics  of  the  Italian  prisons  for  the  year  1879  gave  fourteen 
I>er  cent,  of  recidivists  in  the  penetentiaries  ("  bagnes  ")  and  thirty- 
three  per  cent,  in  the  other  penal  houses  for  men,  yet  I  met  with 
thirty-seven  per  cent,  at  the  penitentiary  of  Pesaro  and  sixty  per 
cent,  at  the  prison  of  Castelfranco.     Even  if  we  should  consider 

1  The  official  figures  on  criminal  relapse  are  always  under  the  facts  because 
the  personal  identity  of  the  most  cunning  and  most  recidivist  delinquents  very 
often  escapes  the  authorities,  through  their  changes  of  name  and  even  sometimes 
of  their  appearance. 

I  shall  speak  lat^r  of  the  anthrometric  systems  of  identification  of  criminals. 

«  Yvemes.  C.  R.  (Stockholm,  1879),  I,  464. 

*  Sterlich,  "Statistique  de  la  recidive,"  report  to  the  International  Congress 
of  Statistics  at  Budapesth  (1876).  See  also,  Foldes,  "Die  Statistik  der  Recidivitat 
in  Ungam,"  in  the  "Bulletin  du  Institute  International  de  Statistique"  (1892), 
VI,  f.  1,  p.  93;  "Einige  Ergebnisse  der  neueren  criminalstatistik  "  ("Die  Recidi- 
vitat"), in  the  "Zeitschrift  fur  gesammelte  Strafrecht  Wissenschaft,"  XI,  p.  568. 

♦  B.  S.  G.  P.  (March,  1878  et  seq.). 


§  86]      NATURAL  CLASSIFICATION  OF  CRIMINALS         131 

the  proportion  unusual  in  these  two  particular  institutions,  this 
clearly  shows  the  insufficiency  of  the  official  data  on  criminal 
relapse  in  Italy  as  well  as  in  all  other  countries,  as  pointed  out  in 
the  criticisms  of  Kobner.^  Aside  from  this  general  fact,  which 
shows  as  Lombroso  ^  said  and  Espinas  ^  repeated,  that  criminal 
relapse  constitutes  not  the  exception  but  the  rule  in  criminal  life, 
we  are  able  to  find  in  statistics  an  indication  of  the  forms  of  crime 
in  which  criminal  relapse  is  more  predominant  and  where,  con- 
sequently, one  finds  the  greatest  number  of  habitual  or  incorrigible 
delinquents.  These  are  the  researches  on  specific  relapse  in  crime 
that  I  began  in  1880,  in  the  study  mentioned  above.  I  can  now 
supplement  them  with  the  aid  of  more  recent  material  from  French 
statistics,  since  these  permit  of  making  a  more  accurate  and  more 
complete  study  than  do  the  Italian  statistics,  where  the  crimes  are 
massed  in  more  or  less  homogeneous  groups. 

France.     Recidivist  Convicts  1877-1881, 
CouKTs  OP  Assize 

Crimes  Crimes 

(Against  the  person)         p.  100  (Against  property)       p.  100 

Violence  against  public  oflBcers        85.8       Thefts  in  churches 74.3 

Bigamy 59.3       Thefts,  simple 71.7 

Wounding  parents  or  grandpar-  Robbery  with  violence,  not  on 

ents 55.9  the  highway 66.0 

Riot 55.5  Robbery,  with  violence  on  the 

Kidnapping  of  minors 46.2  highway 62.4 

Sexual  assaults  on  adults 44.0  Burning  buildings  not  inhabited. 

Wilful  murder  (assassination) . .     42.3  woods,  etc 59.8 

Parricide 41.7 


Manslaughter  (homicide) 39.4 

Sexual  assaults  on  children 38.5 

Attempts  against  railways 37.5 


General  average 58.5 

Barratry 50.0 

Theft  by  servants 44.2 

Coimterfeiting 43.8 


Serious  wounds  followed  by  death    36.8        ^^  .     i        •!• ^o - 

*'  r  orgery,  private  writings 42.5 

General  Average 35.8       Burning  inhabited  dwellings 41.5 

Abortion 30.0       Forgery,  commercial  paper 38.3 

Perjury 26.7        Forgery,  public  documents 37.0 

Sequestration 18.8       Fraudulent  bankruptcy 35.3 

Poisoning 16.7       Abuse  of  confidence  by  domestic 

Infanticide 6.0  servant 32.5 

Stealing,  substitution,  or  aban-  Extortion 30.7 

doning  children 4.9        Embezzlement  of  public  f  unds.. .     28.6 

Robbing  the  mails  by  postal  em- 
ployees   

Smuggling  by  customs  oflBcers . . . 

^  Kohner,  "Organisation  de  la  statistique  des  r6cidives,"  in  the  "Bulletin  de 
rUnion  international  de  droit  p6nal"  (1895),  p.  45.  Garqon,  in  scrutinizing  the 
judicial  records  at  Lille,  found  eighty  per  cent,  of  recidivists.  B.  U.  I.  D.  P.  (1894), 
p.  406.  *  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  I,  471. 

*  Espinas,  "La  philosophic  expdrimentale  en  Italic"  (Paris,  1880),  p.  162. 


132  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§87 

France.    Recidivist  Convicts,  1877-1881   (cont'd.) 

COBRBCTIONAL   TbIBUNAUS 

Deuctb  p.  100  Deuctb  p.  100 

Infractions  of  surveillance 100.0       Outrage  to  public  morality 84.5* 

Infraction  of  expulsion  of  foreign  Public  outrage  to  decency 32.2 

fugitives 93.0        Voluntary  wounds  and  blows 31.0 

Infractions  of  interdiction  to  so-  Unlawful  opening  of  cafes,  inns . .  27.7* 

joum 89.0        Unlawful  practice  of  medicine  or 

Dnmkenness 78.4  pharmacy 26.6 

Vagabondage 71.3        Contraventions  of  railway  regu- 

Begging 65.7  lations 25.3 

Fraud  (escroquo-ie) 47.8        Hunting  or  carrying  prohibited 

Insult  to  public  officers 46.8  arms 24.2 

Forcible  entry 45.3        Breach  of  good  morals,  tending 

Thefts 45.2  to  corruption 23.8 

Breach  of  trust 43.8        Simple  Bankruptcy 23.6 

General  average 41.9^       Insult  to  ministers  of  religion ....  20.4* 

Fraudulent  sales  of  merchandise .  16.7 


Riot,  resistance 40.3 

Written  or  verbal  threats 39.6 

Prohibited  weapons,  etc 37.3 

Political,    electoral,    and    news- 
paper delicts 35.7 


Defamations,  insults,  calumnies .      14.2 
Rural  delicts 12.0 


§  87.  Proportion  of  Recidivity  in  Crimes  Against  the  Person. 

In  crimes  against  the  pjerson  we  find  that  the  offenses  with  a 
recidivity  higher  than  the  average  are  homicide  under  the  more 
serious  forms  and  criminal  assaults.  There  are  high  figures  also 
for  violence  and  resistence  to  public  functionaries  (as  in  Italy),  for 
bigamy,  kidnapping  of  minors,  and  woundings.  But  these  figures 
have  no  great  importance  except  for  woundings,  which  resemble 
homicides  (in  the  assizes)  because  they  are  drawn  from  very  weak 
statistics  or  which  give  very  different  results.  Woundings  are, 
as  we  shall  see,  more  worthy  of  attention  in  the  recidivity  of  crime. 
Further,  these  crimes  against  the  person  confirm  the  observation 
already  made,  —  that  simple  homicide  has  fewer  recidivists  and 
hence  has  a  more  occasional  character  than  qualified  homicides; 
and  further,  that  not  all  the  forms  of  qualified  homicide  (for  in- 

*  The  general  average  of  recidivists  among  those  sentenced  by  the  tribunals 
varies  in  the  official  French  statistics,  because  the  percentage  is  based  on  the  whole 
number  of  i>ersons  sentenced  not  only  for  delicts  but  also  for  contraventions  (with 
the  exception  of  forestry  contraventions  as  is  said  in  the  Reports  for  1877,  p.  XIX, 
and  1879,  p.  18).  I  believe  that  it  would  be  more  exact  to  calculate  the  percentage 
on  the  total  of  delicts  only,  which  are  distinguished  in  the  French  statistics,  thus 
eliminating  the  figures  for  recidivists  of  contraventions  of  the  customs  laws  ("les 
octrois,  douane"),  fishing  laws,  etc. 

*  For  1877-1879  only. 

V 


§  89]      NATURAL  CLASSIFICATION  OF  CRIMINALS         133 

stance,  infanticide)  belong  to  habitual  criminality.  This  is  be- 
cause it  is  the  occasion  that  gives  rise  to  them,  as  we  see  also  in 
abortion  and  abandonment  of  children.  Still,  let  us  note  that  the 
lesser  number  of  recidivists  recorded  for  poisoning,  depends  in  my 
opinion,  on  other  psychological  reasons  that  I  have  indicated  in 
my  study  of  homicide. 

§  88.  Proportion  of  Recidivity  in  Crimes  Against  Property. 

In  crimes  against  property  theft  shows  the  largest  number  of 
recidivists,  with  the  exception  of  its  most  occasional  forms,  such 
as  thefts  and  breaches  of  confidence  committed  by  servants.  So 
also,  forgery  of  commercial  paper  and  bankruptcy,  in  comparison 
with  other  frauds  and  other  crimes  which  depend  less  upon  the 
sudden  vicissitudes  so  frequent  in  finance  and  commerce,  show  a 
more  occasional  character,  which  reaches  its  maximum  in  the 
embezzlement  of  public  funds  or  appropriation  of  postal  credits  by 
employes,  or  in  smuggling  by  customs  oflBcials.  These  oflFenses, 
in  fact,  by  the  rarity  or  absence  of  recidivists,  show  that  they  are 
due  rather  to  occasional  temptations  than  to  innate  criminal  ten- 
dencies. In  the  correctional  tribunals  in  France  as  in  Italy,  it  is 
a  fact  that  the  most  frequent  recidivists  belong  also  to  habitual 
criminality  (vagabondage,  swindhng,  thieving)  except  certain 
offenses  which  either  naturally  ought  to  show  a  higher  recidivity 
because  it  is  the  very  condition  of  their  existence,  such  as  in  breach 
of  surveillance;  or  which  have  the  nature  of  a  contravention  and 
may  be  an  accompanying  accessory  of  habitual  delinquency,  such 
as  drunkenness,  insult  to  public  officers,  violation  of  banishment, 
prohibited  residence,  etc.  Yet,  as  I  have  said,  these  figures  partly 
correct  the  results  relative  to  certain  crimes,  since  it  is  here  seen 
that  resistance,  woundings,  and  simple  thefts,  in  their  more  com- 
mon forms,  give  a  lesser  recidivity  than  in  the  Courts  of  Assize 
just  because  the  mass  of  simple  delicts  falling  within  the  jurisdic- 
tion of  the  minor  courts  (tribunaux)  embraces  a  larger  number  of 
cases  of  a  purely  occasional  nature.  The  same  observation  ap- 
plies to  bankruptcies,  rural  delicts,  fraud  in  mercantile  sales, 
defamations,  and  insults  which  constantly  approximate  the  type 
of  the  occasional  delict. 

§  89.  Statistics  of  Relapse  Reinforce  Conclusions  of  Anthropology. 

Therefore  the  statistics  of  recidivity  in  general  and  the  statistics 
of  the  different  kinds  of  offenses  again  confirm,  in  an  indirect 


134  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  90 

way,  the  observation  that  of  the  total  number  of  persons  who 
commit  crimes  only  some  show  the  individual  anomaUes  ascer- 
tained and  defined  by  anthropology.  The  question  naturally 
occurs:  To  how  high  a  figure  does  the  quota  of  the  most  abnormal 
delinquents  rise  in  comparison  with  those  who  are  less  removed 
from  the  normal  type?  The  answer  may  be  given  directly  by  the 
results  of  anthropological  researches  or  indirectly  by  statistical 
inquiries.  As  to  the  former,  we  are  far  from  having  the  elements 
of  an  exact  and  complete  judgment  in  the  labors  of  the  anthropol- 
ogist because  these  proportions  naturally  vary  with  the  different 
categories  of  crimes,  since  it  goes  without  saying,  as  I  have  already 
observed  of  the  criminal  type,  that  in  homicide,  for  instance,  the 
proportion  of  very  abnormal  individuals  is  much  greater  than, 
for  example,  among  the  authors  of  blows  and  woundings  and 
among  thieves. 

§  90.  Larger  Percentage  of  Habitual  Delinquency. 

Nevertheless,  taking  the  number,  even  in  the  result  given  by 
Lombroso  in  the  last  edition  of  his  "Uomo  delinquente"  as  a  mere 
approximation,  we  may  say  that  the  anthropologico-criminal 
characteristics  are  met  with  in  a  proportion  of  from  forty  to  fifty 
per  cent,  of  the  total  number  of  criminals. 

Colajanni  has  some  objections  (derived  from  his  usual  syllogis- 
tic method  and  not  from  experience)  to  this  proportion  of  habitual 
delinquency.  He  says  that  if  the  habitual  delinquents,  that  is  to 
say,  the  recidivists,  were  subtracted,  the  born-criminals  would 
make  but  an  insignificant  fraction  "which  a  liberal  calculation 
woidd  not  bring  above  five  per  cent." 

Without  discussing  this  very  arbitrary  figure,  it  should  first  of 
aU  be  remarked  that,  whatever  Colajanni  may  say,  all  recidivists 
are  not  habitual  criminals  only,  since  recidivity  is  also  a  pecuUar- 
ity  of  bom-criminals.  Italian  judicial  statistics  for  1887  show  that 
of  five  hundred  and  twenty-three  prisoners  convicted  for  qualified 
homicides,  eight  had  previously  been  convicted  of  qualified  hom- 
icide, —  a  fact  of  enormous  significance  even  from  the  standiM)int 
of  the  defensive  efficiency  of  the  penal  function.  Seventy  others 
had  previously  been  convicted  of  other  assaults  against  the  person; 
and  a  himdred  and  six  for  offenses  of  other  kinds.  Of  one  thou- 
sand six  hundred  and  ninety-four  convicted  of  simple  homicide, 
sixty- three  were  recidivists  of  homicide;  a  hundred  and  eighty- 
eight  were  recidivists  of  other  assaults  against  the  person;    and 


§  90]      NATURAL  CLASSIFICATION  OF  CRIMINALS         135 

three  hundred  and  six  of  other  crimes.^  This  proves,  therefore, 
that  these,  who  were  for  the  larger  part  born-criminals,  rather  than 
delinquents  by  acquired  habit,  also  showed  a  higher  ratio  of  reci- 
divity.  That  born-criminals  and  habitual  criminals  furnish  forty 
or  fifty  per  cent,  of  the  mass  of  delinquents,  is  a  conclusion  that 
finds  support  in  the  following  fact:  Born-criminals  and  habitual 
criminals  have  a  delinquency  which  is  peculiar  to  them  and  which 
statistics  and  the  studies  of  criminal  anthropology  fix  in  a  certain 
few  forms  of  crime  which  are  typical  of  them. 

Outside  of  these  forms,  criminal  science  knows  a  very  much 
larger  number  of  delicts.  Ellero  in  his  critical  study  of  the  Ger- 
man penal  Code  said  that  he  had  counted  two  hundred  and  three 
kinds  of  offenses,  both  crimes  and  delicts.^  I,  myself,  find  that 
there  are  in  the  Italo-Sardinian  Code  about  a  hmidred  and  eighty 
crimes  and  deHcts,  about  a  hundred  and  sixty  in  the  Tuscan  Code, 
about  a  hundred  and  fifty  in  the  French  Code,  and  two  hundred 
and  one  in  the  new  Italian  Penal  Code.  The  forms  peculiar  to 
congenital  and  habitual  delinquency  embrace  about  one  tenth  of 
the  total  of  classified  delicts.  It  is  not  difficult  to  believe  that,  as 
a  general  rule,  the  delicts  committed  by  incorrigible  or  habitual 
criminals  are  not  often  political  offenses  nor  delicts  of  the  press. 
Nor  are  they  deUcts  against  religion,  corruption  of  public  offices, 
bribery,  embezzlement,  usurpation  of  titles,  or  abuse  of  authority; 
nor  slanders,  perjuries,  subornation,  adulteries,  incests,  and  rapes; 
nor  infanticides,  attempts  at  abortion,  substitution  of  children; 
nor  disclosure  of  secrets;  nor  refusal  to  do  required  service;  nor 
damage  to  real  property,  bankruptcies,  violations  of  domicile, 
obstructions  to  the  exercise  of  political  rights;  nor  illegal  deten- 
tions, duels,  insults,  defamations,  and  the  like. 

Aside  from  the  criterion  of  classification,  statistics  must  be 
taken  into  account,  in  order  to  see  to  what  extent  the  forms  of 
habitual  delinquency  enter  into  the  total,  it  being,  of  course, 
imderstood  that  the  relative  frequency  has  a  large  variation  for 
each  delict.  With  this  object  in  view  I  took  occasion,  in  the  study 
cited  above,  to  make  some  researches  of  which  I  give  here  the  most 
important  conclusions. 

^  See  Bodio,  "Relazione  della  delinquenza  nel  1887,"  in  the  "Atti  della  com- 
misione  di  statistica  giuridica"  (Rome,  1889). 

*  EUero,  in  the  "Opuscoli  criminali"  (Bologna,  1874),  p.  457. 


136 


DATA  OF  CRBONAL  ANTHROPOLOGY 


[§91 


Habitual  Det.tnquenct 

Italy 

Fbance 

Belgium 

Wilful   Murder,    Manslaughter, 
Robbery,  Association  of  Crim- 
inals, Rape,  Brigandage,  Arson, 
Vagabondise,  Swindling,  Forg- 
ery. 

1 

m 
"3 

a 
s 

•c 

3 
e2 

1 

1 

1 

u 

H 

1 

1 

e 

3 

3 

Relation  of  habitual  delinquency 
to  the  total  number  of  convicts 

% 
84 

% 
32 

% 

38 

% 

90 

% 
34 

% 
35 

% 
86 

% 
30 

% 

30 

That  is  to  say,  in  the  mass  of  convicted  deUnquents  there  is 
an  habitual  delinquency  of  about  forty  per  cent,  in  Italy  and  a 
trifle  less  in  France  and  Belgium.  This  difference  is  partly  due,  as 
to  Belgium,  to  the  fact  that  vagabondage  is  not  included;  but 
more  especially  to  the  fact  that  in  other  countries  certain  forms 
of  habitual  criminality  are  less  frequently  met  with.  These  are 
unfortunately  much  more  frequent  in  Italy,  such  as  homicide, 
armed  robbery,  and  associations  of  criminals.^  This  difference  in 
the  totals,  increasing  for  Italy  and  decreasing  for  France  and  Bel- 
gium, has  a  more  important  significance.  In  Italy  the  increase 
can  only  be  explained  by  a  stronger  proportion  of  the  forms  of 
habitual  delinquency,  which  is  all  the  more  serious  since  we  ob- 
serve an  increase,  also,  in  the  occasional  and  contraventional 
forms  of  criminahty,  whilst  in  France  and  Belgium  the  propor- 
tional diminution  of  habitual  dehnquency  may  depend  upon  a  real 
decrease  in  that  form  or,  on  the  contrary,  to  an  increase  of  occa- 
sional and  contraventional  crimes,  either  by  an  actual  growth  in 
numbers  or  by  the  effect  of  new  laws. 


§  91.  Percentage  in  Habitual  Delinquency  Between  "Assizes" 
and  "  Tribunals." 

Another  fact  is  shown  by  this  table;  namely,  that  habitual 
delinquency,  in  Italy  as  well  as  in  France  and  Belgium,  is  more 
frequently  met  with  in  the  dehcts  within  the  jurisdiction  of  the 

'  The  same  calculations  made  for  the  years  1891-1895  would  give  a  total  of 
44  per  cent,  for  Italy;  in  France  96  per  cent.,  in  the  Assizes,  25  per  cent.,  in  the 
Tribunals,  and  a  total  of  26  p)er  cent.;  in  Belgium,  95  per  cent,  in  the  Assizes,  25 
per  cent,  in  the  Tribunals,  and  a  total  of  25  per  cent. 

«  This  difference  in  totals  —  an  increase  for  Italy  and  a  decrease  for  France 
and  Belgium  —  has,  however,  a  different  significance  in  the  two  cases.  In  Italy 
the  increase  can  only  be  accounted  for  by  a  greater  proportion  of  the  forms  of 
habitual  deliquency,  which  is  all  the  more  serious  since  we  find  there  also  an 
increase  in  the  occasional  and  contraventional  forms  of  criminality;    whereas. 


§91]      NATURAL  CLASSIFICATION  OF  CRIMINALS         137 

Assizes  (except  cases  of  robbery  and  vagabondage)  because  the 
Assizes  try  principally  cases  which  are  at  the  foundation  of  prim- 
itive criminaUty,  —  of  the  criminality  which  is  most  natural  to 
the  quasi-savage  and  to  the  man  least  changed  by  the  progress  of 
social  life. 

If  we  should  now  seek  the  proportions  in  which  habitual  de- 
linquency is  distributed  between  the  Assizes  and  the  Tribunals 
we  would  find  that  the  latter  pass  on  a  greater  number  of  cases 
belonging  to  their  jurisdiction,  because,  as  in  the  zoological  scale 
there  is  greater  fertility  in  the  lower  degrees,  so  in  the  criminal 
scale  the  less  serious  delicts,  such  as  swindling  and  vagabondage, 
are  likewise  more  numerous.  For  example,  in  the  thirty -eight  per 
cent,  of  habitual  delinquency  which  is  the  total  for  Italy,  thirty- 
two  per  cent,  belong  to  the  Tribunals  and  only  six  per  cent,  to  the 
Assizes;  in  France  with  a  total  of  thirty-five  per  cent,  thirty-three 
per  cent,  are  in  the  Tribunals  and  two  per  cent,  in  the  Assizes;  in 
Belgium  with  thirty  per  cent.,  twenty -nine  per  cent,  belong  to  the 
Tribunals  and  one  per  cent  to  the  Assizes.  Now,  if  in  the  figures 
for  habitual  delinquency  such  as  they  are  found  in  the  total  of 
persons  convicted  by  the  Assizes  and  Tribunals,  the  effective  nu- 
merical frequency  were  observed,  it  would  be  found  that  thefts 
("vols")  are  the  most  numerous  Ln  Italy  (twenty  percent.)  as  well 
as  in  France  (twenty-four  per  cent.)  and  Belgium  (twenty-three 
per  cent.).  Starke  found  the  same  thing  in  Prussia  where  unlaw- 
ful appropriation  of  property  forms  thirty-seven  per  cent,  of  the 
total  delinquency.^  In  the  second  rank  in  Italy  come  vagabond- 
age (five  per  cent.),  the  different  homicides  (four  per  cent.), 
swindling  and  fraud  (three  per  cent.),  robbery  with  violence  (two 
per  cent.),  forgery  (0.9  per  cent.),  violations  and  associations  of 
criminals  (0.4  per  cent.),  and  in  the  last  place,  arson  (0.2  per  cent.).'^ 
Similar  figures  are  found  in  France  and  Belgium  for  vagabondage 

in  France  and  Belgium  the  proportionate  decrease  of  habitual  delinquency  may 
depend  either  on  a  real  decrease  in  this  habitual  delinquency  or  on  an  increase 
of  occasional  and  contraventional  delicts,  as  a  real  increase  of  number  or  as  the 
effect  of  the  creation  of  new  laws. 

1  Starke,  "Verbrechen  imd  Verbrecher  in  Preussen,  1854-1878"  (Berlin,  1884), 
p.  92. 

^  Beltrani-Scalia,  "La  riforma  penitenziaria  in  Italia"  (Rome,  1879),  pp.  82, 
et  seq.  See  also  Boumet,  "De  la  criminality  en  France  et  en  Italic"  (Paris,  1884), 
and  the  oflBcial  volume  "Movimento  della  delinquenza  nel  1873-1884,  con.  Ap- 
punto,  di  statistica  intemazional "  (Rome,  1886),  which  was  published  on  my  ini- 
tiative by  the  commissioner  for  judicial  statistics.  See  also  the  later  volumes  of 
criminal  court  statistics.  See  abo  Bosco,  " La  delinquenza  in  alcuni  stati  d'Europa" 
(Rome,  1899). 


138  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  92 

and  for  swindling,  while  assassinations,  homicides,  brigandage, 
arson,  and  associations  of  criminals  are  much  less.  The  inverse  is 
true  of  violations  which  are  more  common  in  France  (0.5  per  cent.) 
and  in  Belgium  (one  per  cent.)  than  in  Italy.  On  the  other  hand, 
the  curious  observation  is  made  in  Italy  that  during  the  i>eriod  of 
forced  currency,  which  lasted  until  1900,  and  which  put  a  much 
greater  quantity  of  paper  money  in  circulation,  there  was  a  larger 
prop)ortion  of  counterfeiting  (0.4  per  cent.)  than  in  France  (0.09 
per  cent.)  and  Belgium  (0.04  per  cent.);  and  thus  the  barren 
figures  prove  that  I  was  right  when  I  said  elsewhere  what  I  shall 
have  occasion  to  say  again  further  on:  that  in  order  to  diminish 
the  crime  of  counterfeiting,  the  substitution  of  coin  for  paper 
money  is  more  efifective  than  the  maximum  of  hard  labor. 

§  92.  Five  Categories  of  Criminals. 

Having  thus  demonstrated  by  means  of  anthropology  and 
statistics  the  reaUty  of  this  basic  distinction  between  habitual 
and  occasional  dehnquents  of  which  so  many  observers  had  already 
an  intuition,  but  which  had  as  yet  taken  no  definite  form,  we 
have  established  the  starting-point  for  those  successive  distinc- 
tions which  the  study  of  facts  led  me  to  introduce  into  criminal 
science  and  which  have  since  been  accepted  under  more  or  less 
different  names  by  all  experts  in  criminal  sociology. 

These  ulterior  distinctions  are  determined  by  the  criteria  of 
fact  which  follow.  First  of  all  in  the  mass  of  habitual  delinquents 
there  are  presented  those  who  are  affected  with  an  obvious  and 
clinical  form  of  mental  ahenation  from  which  proceeds  their 
criminal  activity.  In  the  second  place,  among  the  habitual  de- 
linquents who  are  not  mentally  affected,  httle  as  one  may  have 
visited  the  prisons  and  studied  delinquents  from  the  sociological 
standpoint,  one  finds  a  class  of  individuals  physically  and  morally 
ill-favored  from  birth,  who  live  in  crime  by  reason  of  a  congenital 
necessity  of  organic  and  psychic  adaptation,  and  who  are  closer 
to  insanity  than  to  normal  reason.  This  category  is  distinguished 
from  another  class  of  individuals  who  also  live  in  crime  and  by 
crime  owing  to  the  predominant  influence  of  the  social  environ- 
ment in  which  they  were  born  and  have  grown  up,  —  an  influ- 
ence always  found  together  with  a  wretched  organic  and  psychic 
constitution.  These  individuals,  however,  once  having  reached 
the  state  of  chronic  crime,  are  incorrigible  and  degenerate  like  the 
other  habitual  criminals;  but,  before  the  descent  from  the  first 


§  93]      NATURAL  CLASSIFICATION  OF  CRIMINALS         139 

crime  to  the  depths,  they  could  easily  have  been  saved  by  pre- 
ventive institutions  and  by  a  medium  less  profoundly  vicious. 

Moreover,  in  the  class  of  occasional  delinquents  a  special 
category  is  distinguished,  less  by  different  characteristics  than  by 
the  typical  exaggeration  of  its  organic  and  psychic  characteristics 
hence,  almost  exclusively  by  differences  in  degree  —  greater  or 
less.  In  all  of  these  individuals  it  is  rather  the  impulsion  of  occa- 
sion than  innate  tendency  which  determines  the  crime.  With 
the  majority  the  determining  occasion  is  a  quite  common,  or,  at 
least,  a  not  too  exceptional  stimulus,  —  but  for  some,  on  the  con- 
trary, the  stimulus  is  an  outburst  of  extraordinary  passion,  a 
psychological  tempest  which  of  itself  can  carry  them  to  the  point 
of  crime.  Some  of  these  individuals  are  normal  men;  others  who, 
so  to  sp>eak,  complete  the  circle  are  in  a  class,  as  Delbruck,  and 
Baer  ^  have  said,  which  is  closely  related  to  that  of  the  criminal 
insane,  if  not  with  a  permanent  form  of  derangement  at  least  with 
a  lack  of  psychic  equilibrium,  which,  at  first  more  or  less  latent, 
finally  breaks  out  in  a  criminal  attempt. 

The  whole  mass  of  delinquents  classify  themselves  into  five 
categories  which  as  early  as  1880  I  designated  as  follows:  Crim- 
inal-insane —  criminal-born  —  habitual  criminals  or  criminals  by 
acquired  habit  —  chance  criminals  ("d'occasion")  —  criminals  by 
passion.'^ 

§  93.  The  Criminal  Insane. 

As  I  have  already  said,  criminal  anthropology  wiU  not  have 
reached  its  definite  phase  until  it  shall  advance  by  biological, 
psychological,  and  statistical  biographies  in  each  of  these  cate- 
gories, giving  to  each  in  a  qualitative  and  quantitative  way 
psychological  characteristics  with  a  greater  precision  than  now 

1  Baer,  "Le  prigioni  ed  i  sistemi  penitenziari,"  reviewed  by  Roggero  in  the 
R.  C,  pp.  346  et  seq. 

»  The  term  criminal-bom  ("delinquente  nato")  so  much  discussed  and  now 
accepted  in  ordinary  language  since  it  responds  to  constant  observations  of  daily 
life  even  by  those  who  are  strangers  to  anthropological  science,  was  first  given  by 
me  in  1880,  "Diritto  penale  ed  anthropologia  criminale,"  A.  P.,  I,  474,  for  the 
following  consideration:  "There  is  not  much  precision  in  the  term  'habitual 
criminal'  as  indicating  the  type  of  man  who  because  of  a  bad  physical  and  psychic 
organization,  is  bom,  lives,  and  dies  delinquent:  in  reality  he  is  such  from  his  first 
delict  (often  committed  in  infancy),  that  is,  from  a  time  when  there  cannot  yet  be 
any  question  of  the  habit  of  crime.  It  would  be  more  accm-ate  to  call  him  an  in- 
corrigible delinquent  or  a  bom-delinquent,  thus  indicating  a  condition  which  is 
established  with  the  first  misdeed,  when  the  culprit  shows  those  anthropological 
characteristics  which  make  of  him  a  separate  type."  The  term  "criminal-bom" 
has  indeed  been  fortunate. 


140  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§93 

obtains,  since  the  present  observers  give  characteristics  for  a 
whole  mass  of  delinquents  who  are  distinguished  only  by  the  legal 
form  of  the  crime  committed  and  not  according  to  their  bio-social 
type  as  well.  In  the  works  of  Lombroso,  Marro,  and  others  and 
even  in  my  "Omicidio"  to  a  considerable  extent,  the  character- 
istics are  indicated  either  for  the  total  or  else  according  to  the 
legal  categories  of  delinquents  (murderers,  thieves,  forgers,  etc.), 
in  each  of  which  categories  there  are  born-criminals,  habitual 
criminals,  occasional  or  chance  criminals,  and  insane  criminals. 
It  foUows  that  there  are  either  partial  disagreements  between 
observers,  or  at  least  a  kind  of  average  in  the  characteristics  of 
each  anthropological  class  of  criminals.  Now,  in  consequence  of 
the  studies  that  have  been  made  and  especially  since  my  studies 
on  hundreds  of  delinquents,  ordinary  madmen,  and  normal  per- 
sons, we  are  able  to  point  out  here  the  general  lines  which  dis- 
tinguish these  five  anthropological  classes  of  delinquents.  First, 
it  is  evident  that  in  a  classification  of  delinquents  which  does  not 
limit  itself  exclusively  to  the  technical  field  of  criminal  anthro- 
pology and  which  must  afford  a  positive  base  for  the  inductions 
of  criminal  sociology,  the  category  of  the  criminal  insane  is  fully 
entitled  to  a  place.  There  is  no  necessity  to  be  long  with  the 
objection  that  Joly  ^  has  again  recently  made  me,  wherein  he 
claims  that  the  term  —  criminal-insane  —  is  a  contradiction  of 
terms  because  the  insane  are  not  criminal  as  they  lack  moral 
responsibility.  I  shall  make  reply  to  this  assertion,  which  is  in- 
spired by  the  traditional  spiritualism,  in  treating  of  social  ac- 
countability^ which  appHes  even  to  the  criminal  insane.  In  the 
meantime,  when  speaking  of  insane  persons  who  commit  some  of 
those  acts  which  if  committed  by  sane  men  would  be  called  crimes, 
we  shall  consider  the  term  in  its  objective  sense  which  is  not  open 
to  discussion.  Nor  should  we  halt  on  the  objection  made  by 
Bianchi,  among  others,  at  the  Criminal  Anthropology  Congress  of 
Rome; '  namely,  that  the  criminal  insane  belong  to  psychiatry. 
The  fact  that  psychiatry  is  concerned  with  them  from  the  stand- 
point of  psychopathology  does  not  prevent  criminal  anthropology 
and  criminal  sociology  from  being  occupied  with  them,  either  in 
every  form  of  natural  study  of  the  criminal,  or  in  indicat- 
ing measures  concerning  them  in  the  interest,  of  pubUc  safety. 

*  Joly,  "Le  crime,"  p.  62. 

*  See  Chap.  Ill,  post. 
.                     »  A.  C.  A.  C,  137. 


§  93]      NATURAL  CLASSIFICATION  OF  CRIMINALS         141 

Among  the  criminal  insane  there  is  a  whole  variety,  recognized 
since  the  studies  of  Lombroso  ^  and  since  the  quasi-unanimity 
of  the  Italian  psychiatrists  shown  at  the  Phreniatrical  Con- 
gress of  Sienna,^  which  is  not  distinguishable  from  that  of  real 
born-criminals.  These  are  the  morally  insane  aflflicted  with 
the  hitherto  Uttle-defined  phrenopathic  form  to  which  science 
has  given  so  many  names,  from  "moral  imbecility,"  used  by 
Pritchard,  to  "reasoning  insanity,"  employed  by  Verga.  This 
mental  infirmity,  which  has  been  recently  studied,  especially  in 
the  works  of  Mendel,  Degrand  du  SauUe,  Maudsley,  Krafft- 
Ebing,  Savage  Hugues,  Hollander,  Bonfigh,  Tamburini  and  Sep- 
pilli,  Bonnecchiato,  G.  B.  Verga,  Salemi,  Pace,  Bleuler,  Barr, 
Waggoner,  and  others,  consists  in  the  last  analysis  in  the  ab- 
sence or  atrophy  of  the  moral  sense  (which  I  prefer  to  call  the 
social  sense  of  what  is  permitted  or  forbidden) .  It  is  most  often 
congenital  but  sometimes  acquired.  It  coexists  with  apparent  in- 
tegrity of  logical  reasoning  and  presents  the  fundamental  psycho- 
logical condition  of  the  born-criminal.  This  is  an  observation  of 
the  greatest  importance  in  avoiding  the  easy  misapprehensions  into 
which  certain  critics  of  the  positive  school  have  fallen.  In  failing 
to  note  the  absolute  difference  between  the  morally  insane  and 
ordinary  madmen  they  have  revolted  against  a  pretended  "identi- 
fication between  criminals  and  madmen"  which  has  never  had  any 
place  in  the  inductions  of  criminal  anthropology.  Aside  from 
morally  insane  persons  who  are  indeed  rare  and  who,  as  Lombroso 
and  Krafft-Ebing  remark,  are  more  often  sent  to  prison  as  de- 
linquents than  to  special  houses  as  patients,  there  is  a  whole 
phalanx  of  unfortunates  who  are  afilicted  with  a  common  and  more 
or  less  apparent  form  of  mental  infirmity.  In  this  pathological 
state  they  commit  crimes  sometimes  atrocious  in  the  cases  for 
instance  of  idiocy,  the  mania  of  persecution,  violent  mania,  epi- 
lepsy, or  in  attempts  against  property  and  morals;  also  in  cases 
of  general  paralysis,  epilepsy,  and  imbecility.  A  general  descrip- 
tion of  these  numerous  and  very  different  kinds  of  insane  cannot 
be  given  here  because  their  organic  and  especially  psycho-patho- 
logical characteristics  are  not  only  at  the  same  time  identical  and 

*  Lombroso,  "  Pazzia  morale  e  delinquente  nato,"  A.  P.,  vol.  I  (1884); 
"L'uomo  delinquente"  4th  ed.,  I,  pp.  584  et  seq. 

*  "Atti  del  quinto  congresso  freniatrico"  (Milan,  1887),  pp.  64,  223  et  seq. 
See  also  the  critical  study  of  Tanzi,  "Pazzi  morali  e  delinquenti  nati,"  R.  S.  F. 
(1884),  and  Tamburini,  "Contribution  a  I'etude  de  la  delinquence  congenitale  et 
de  la  folic  morale,"  A.  C.  A.  C.  (Rome,  1887),  p.  431. 


142  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§94 

opposed  to  those  of  non-insane  criminals,  but  also,  and  especi- 
ally, because  these  characteristics  often  vary  with  the  different 
forms  of  mental  malady  and  hence,  as  Lombroso  also  thinks,^ 
they  cannot  be  gathered  into  a  single  type  as  can  be  done  for  the 
other  categories  of  delinquents. ^ 

§  94.  The  Mattoide  and  Semi-insane  Categories. 

Besides  the  really  insane,  who  are,  as  I  have  pointed  out  and 
been  confirmed  in  by  others,  only  an  exaggeration  of  the  born 
criminal  type,^  this  category  also  embraces  the  delinquents  who 
are  neither  completely  sane  nor  insane  and  belong  to  what  Mauds- 
ley  called  the  "intermediate  zone."  Lombroso  denotes  them 
with  the  term  "mattoides"  which  is  now  part  of  ordinary  language 
since  it  expresses  in  a  popular  untechnical  form  an  indisputable 
fact.  It  is  really  a  mere  prejudice  to  believe  that  there  are  found 
in  nature  the  precise  distinctions  to  which  human  language  is 
forced  to  resort  and  that,  for  instance,  in  the  present  case  there 
is  a  clean-cut  difference  between  the  sane  and  the  insane.  No, 
there  is  a  shading  of  tints  where  we  pass  from  one  to  the  other  by 
transitions  which  are  difficult  of  determination.*  Types  of  these 
half-insane  delinquents  are  afforded  us  by  those  who  finish  their 
existence  with  a  crime,  often  pohtical  in  character  or  appearance. 
Their  lives  have  been  full  of  extravagances  which  are  often  char- 
acteristically expressed  in  a  mania  for  writing  and  publishing  a 
flood  of  pamphlets,  wherein,  in  spite  of  only  the  most  rudimentary 
education,  they  treat  of  the  highest  topics.  Such  are  the  Lazza- 
rettis,  the  Magiones,  the  Passanantes,  the  Guiteaus,  the  Macleans, 
etc.  It  is  the  half-insane  who  commit  the  most  atrocious  and  re- 
pelling crimes  of  bloodshed  with  a  coolness  which  proceeds  from 
their  pathological  organization,  and  without  any  apparent  motive  or 
without  a  motive  proportionate  to  its  effect.  And  yet  the  classical 
criminalists  find  in  them  the  maximum  of  "moral  liberty"  and  of 
responsibility  when  they  speak  of  homicides  committed  "with- 
out cause"  or  simply  through  "brutal  perversity"  or  through  a 

1  "L'Uomo  delinquente,"  5th  ed.,  II,  480. 

*  For  an  analj-tical  description  of  the  criminal-insane,  see  Lombroso,  "L'uomo 
delinquente,"  5th  ed.  II,  266  et  seq.;  and  for  insane  murderers,  see  my  "Omicidio  " 
(the  psycho-pathology  of  homicide). 

*  Lombroso,  Preface  to  "Duecento  criminali  e  prostitute,"  by  OUolenghi  and 
Bossi  (Turin,  1898),  p.  \l. 

*  Cullerre,  "Les  frontieres  de  la  foHe"  (Paris,  1888);  Parani,  "La  raison  dans 
la  folie"  (Paris,  1888);  Soury,  "Etude  sur  la  folic  h6reditaire"  (Paris,  1886). 

V 


§  94]      NATURAL  CLASSIFICATION  OF  CRIMINALS         143 

sort  of  "sanguinary  erotism"  or  through  "hatred  for  humanity." 
We  find  other  examples  among  those  whom  alienists  call  necro- 
philo-maniacs  who  are  equally  impelled  to  murder  or  rape  —  like 
that  Sergeant  Bertrand  who  dug  up  bodies  to  violate  them,  —  or 
Verzeni  who  violated  women  after  having  strangled  them,  — 
or  Menesclou  who  was  sentenced  to  death  at  Paris  for  hacking 
to  pieces  a  little  girl  of  seven  after  he  had  violated  her.^ 

Finally,  a  large  contingent  is  furnished  to  this  category  by  those 
who  are  afflicted  with  hereditary  insanity  and  epilepsy,  under 
forms  of  these  maladies  which  are  much  more  frequent  than  is 
generally  beheved,  and  to  which  the  latest  results  of  psychopathol- 
ogy  reduce  the  greater  part  of  those  strange  forms  of  alienation 
that  were  formerly  called  temporary  insanity  and  in  which  various 
kinds  of  monomania  are  observed.  One  of  these  latter,  "mis- 
deisme,"  deserves  mention.  It  is  the  kind  of  homicide  with  the 
massacre  of  several  persons,  committed  generally  by  soldiers  on 
their  comrades  or  on  their  superiors,  without  any  apparent  serious 
motive.  This  is  certainly  an  expression  of  epilepsy  among  indi- 
viduals whom  a  more  careful  and  a  more  rigorous  examination  be- 
fore enlistment  would  have  kept  out  of  the  service,  and  would 
avoid  the  frequent  repetition  of  these  tragedies,  which  it  is  absurd, 
as  well  as  useless,  to  persist  in  combating  with  the  death  penalty. 
In  this  connection  we  should  recall  that  Lombroso,  although  at 
first  identifying  moral  insanity  with  congenital  delinquency, 
finally  traced  both  to  epilepsy,  making,  as  I  had  already  declared, 
the  epileptoid  constitution  the  common  base  of  all  forms  of  de- 
linquency. Certainly  the  positive  proofs  advanced  by  him  are  so 
numerous  and  agree  so  well  that  after  the  first  objections,  which 
were  inevitable  and  which  were  made  also  to  the  assimilation  of 
the  morally  insane  with  the  born  criminal,  this  view  will  finally  be 
definitely  conceded,  or,  at  least  essentially.  Already  in  practice  it 
seems  to  explain  certain  strange  and  savage  crimes  wherein  one 
very  often  finds  traces  of  the  epileptic  temperament  of  which 
formerly  one  never  thought  except  in  the  most  pronounced  and 
rarest  cases.^ 

1  Viazzi,  "Sur  reati  sessuali"  (Turin,  1896),  Cap.  XII;  Krafft-Ehing,  "Psy- 
copathia  sexualis"  (Stuttgart,  1886),  and  all  the  rich  bibliography  from  Westphal 
to  Raffalovich,  on  sexual  perversion,  in  Ferri,  "L'Omicidio,"  pp.  624,  662. 

^  Lombroso,  "Uomo  delinquente,"  4th  ed.,  I,  631  et  seq.;  I,  116.  See  also 
Frigerio,  "De  I'epilepsie  et  de  la  folie  morale  dans  les  prisons  et  les  asiles  d'ali^n^s," 
A.  C.  A.  C.  (Rome,  1887),  pp.  212  et  seq.;  Tonnini,  "Le  epilessie"  (Turin,  1886); 
Sighicelli  et  Tamboni,  "Pazzia  morale  ed  epilessia,"  R.  S.  V.  (1888);    Venturi, 


144  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  95 

§  96.   The  Bom-Criminal  Category. 

Finally  comes  the  category  of  the  criminal-bom  which  is, 
properly-speaking,  made  up  of  those  in  whom  there  is  observed 
clearly  the  special  marks  revealed  by  criminal  anthropology. 
These  are  the  types  of  men,  either  savage  and  brutal  or  poHshed 
and  idle,  who  are  unable  to  distinguish  murder,  robbery,  and 
crime  in  general  from  honest  industry.  They  are  "delinquents 
just  as  others  are  good  workmen  ";  ^  and  have  ideas  and  sentiments 
on  crime  and  punishment  entirely  opposed  to  those  which  legisla- 
tors and  criminologists  think  they  have.  With  these  delinquents, 
a  penalty  suffered  has,  as  Romagnosi*  said,  less  effect  than  a 
penalty  which  threatens.  It  has,  in  fact,  none  at  all  because  they 
consider  prison  as  a  refuge  where  food  is  assured  them  even  in 
winter  without  need  of  much  labor  and  more  often  with  enforced 
idleness;  or,  at  the  most,  as  a  risk  inseparable  from  their  criminal 
industry,  just  like  any  other  risk,  such  as  falling  from  a  false  work 
which  is  incurred  by  a  mason  or  the  risks  incurred  by  railway 
servants. 

These  with  the  habitual  delinquents  constitute,  imder  the  two 
characteristic  and  opposed  types  of  mm-derers  and  thieves,  the 
phalanx  of  those  who,  scarcely  released  from  prison,  again  commit 
crime  and  are  eternal  p>ensioners  of  all  the  houses  of  detention. 
Well  known  to  pohce  and  the  courts,  they  count  their  convictions 
for  trifling  offenses  by  the  dozen  or  more.  Against  these,  the 
legislator,  closing  his  eyes  to  daily  experience,  persists  in  the  use- 
less and  costly  fight  between  penalties  which  cause  no  fear  and 
delicts  ceaselessly  repeated.'  The  idea  of  a  born-criminal  (who  is 
criminal  by  the  inexorable  tyranny  of  congenital  tendencies)  is 
certainly  contrary  to  common  opinion,  which  insists  that  every 
man  should  impute  his  conduct  to  his  free  will  or  at  most  to  a 
defective  and  badly  directed  training  rather  than  to  the  ordinary 
composition  of  his  organic  and  physical  constitution.  It  thus 
lends  itself  to  facile  and  oratorical  contradictions.     Further,  the 

"La  epilessia  vasomotoria,"  A.  P.  (1889),  p.  28;  Baker,  "Some  Remarks  on  the 
Relation  of  Epilepsy  and  Crime,"  J.  M.  S.  (July,  1888);  Fere,  "Les  epilepsies  et 
les  epileptiques"  (Paris,  1890);  Ottolenghi,  "Epilessie  psichiche"  (Turin,  1893); 
Roncoroni,  "Trattato  clinico  della  epilessia"  (Milan,  1894);  Peixoto,  "Epilepsia 
e  crime." 

'  Fregier,  "Les  classes  dangereuses,"  p.  175. 

*  Romagnosi,  "Genesi  del  diritto  j)enale,"  §1493. 

*  Wayland,  "I  delinquenti  incorreggibili,"  in  the  R.  C.  (1888),  p.  558;  Sieh- 
art,  "Criminels  incorrigibles,"  in  "Bull.  comm.  penit.  intern."  (April,  1889). 


§96]      NATURAL  CLASSIFICATION  OF  CRIMINALS         145 

incompetents  who  visit  the  prisons  are  unable  either  to  find  or 
see  these  types  of  dehnquents;  and  this  is  partly,  as  I'Abbe 
Crozes  (who  observed  and  knew  the  prison  world  to  the  very  bot- 
tom) has  very  well  shown.  He  says:  "these  incorrigibles  are 
ordinarily  inoffensive  and  often  useful  prisoners,  and  have  only 
the  best  relations  with  the  keepers  and  directors,  who  say  of  them : 
'He  is  a  good  prisoner  who  listens  to  reason,  and  would  not  harm 
a  fly.'  Prison  life  is  no  suffering  for  them:  they  are  there  'hke 
the  painter  in  his  studio  where  he  thinks  of  new  master-pieces."  ^ 
But  this  same  common  opinion  when  it  is  not  preoccupied  with  the 
dreadful  and  imaginary  consequences  of  the  irresponsibility  for 
crime  committed  under  such  conditions,  recognizes,  at  least  in  the 
evident  cases,  that  there  are  men  born  for  crime  whose  anti- 
human  conduct  is  the  inevitable  effect  of  an  indefinite  series  of 
hereditary  infiuences  which  accumulate  in  the  course  of  genera- 
tions. This  is  proven  by  the  success  which  has  attended  in 
ordinary  language  my  expression,  the  born-criminal.  Science, 
moreover,  to  which  in  the  end  the  common  opinion  surrenders, 
has  gathered  such  convincing  proofs  of  this  idea;  practical  life 
has  so  confirmed  it  with  the  general  testimony  of  prison  directors 
and  prison  doctors,  that  the  fact  will  surely  be  impressed  upon 
legislators,  unless  they  wish  to  imitate  the  hen  which  after  hatch- 
ing ducklings  undertook  to  correct  them  of  their  iimate  desire  to 
swim  by  pecking  them  every  time  they  came  out  of  the  water,  — 
a  process  which  did  not  prevent  their  immediate  return  in  spite 
of  her. 

§  96.  The  Habitual  Delinquent  Category. 

In  the  third  place  is  the  category  of  delinquents  whom,  as  the 
result  of  studies  principally  made  in  the  prisons,  I  have  called 
habitual  dehnquents  or  delinquents  by  acquired  habit.  These 
individuals  show  in  an  indistinct  way,  if  at  all,  the  anthropological 
marks  of  the  born-criminal.  The  first  crime  is  committed  very 
often  at  a  tender  age  and  almost  always  against  property  and  less 
through  innate  tendencies  than  through  the  moral  weakness 
peculiar  to  them,  to  which  is  added  the  impulsion  of  circumstances 
and  a  corrupt  environment  which  constitute  a  true  center  of 
criminal  infection.  Often,  also,  as  Joly  ^  observes,  they  are  en- 
couraged by  the  impunity  following  their  first  faults  and  persist 

^  Moreau,  "Souvenirs  de  la  petite  et  de  la  grande  Roquette"  (Paris,  1884), 
II,  440. 

*  Joly,  "Le  crime,"  Cap.  IV. 


146  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  97 

in  crime,  which  then  becomes  a  chronic  habit  and  a  real  profes- 
sion. This  comes  from  the  fact  that  detention  in  common  cor- 
rupts them  morally  and  physically,  confinement  in  cells  stupifies 
them,  alcoholism  brutalizes  them,  and  society,  abandoning  them 
after  as  before  their  Uberation,  to  wretchedness,  idleness,  and 
temptation,  does  not  help  them  in  their  struggle  to  re-enter  the 
conditions  of  honest  life.  "Society  may  even  have  forced  them 
to  fall  back  into  crime  by  certain  institutions  such  as  segrega- 
tion, admonition,  and  surveillance,  which  ought  to  be  preventive 
but  which,  on  the  contrary,  are  new  causes  of  crime."  Adults  and 
even  youths  are  sentenced  ten,  twenty,  and  thirty  times  to  short 
terms,  generally  for  theft  or  vagabondage,  and  this  simply  be- 
cause after  their  first  crime,  admonition  and  surveillance  together 
with  the  corruption  of  the  so-called  houses  of  correction  and 
prisons  deprived  them  of  every  means  of  honestly  gaining  their 
living.  Judges  and  lawyers  know  it  well.  They  know  that  with 
these  badly  combiued  social  mechanisms  Thomas  Moore  was 
right  in  saying  "  What  are  you  doing  but  making  thieves  in  order 
to  have  the  pleasure  of  putting  them  in  prison?"  It  is  precisely 
the  thieves  that  in  my  opinion  form,  together  with  other  similar 
delinquents  against  property,  the  principal  contingent  of  delin- 
quents by  acquired  habit,  because  trained  or  forced  to  begging 
and  to  theft  from  their  tender  infancy  by  their  families  or  by  other 
persons  who,  especially  in  large  cities,  become  promoters  and 
professors  of  crime,  they  do  not  know  honest  toil  and  are  the 
"bedouins"  of  the  great  cities." 

§  97.  Precocity  and  recidivity ;  —  Traits  of  the  Habitual  Criminal. 

Precocity  and  recidivity  in  addition  to  the  anthropological 
indications  are  the  sociological  traits  that  I  have  indicated  in 
habitual  criminals  as  in  born-criminals  but  for  different  reasons.^ 
I  am  reserving  the  demonstration^  of  how  the  influence  of  age  on  the 
responsibiUty  of  the  delinquent  is  regulated  by  the  p>ositive  school 
quite  differently  from  the  classical  principles.'  For  the  moment 
I  am  content  to  indicate  that  this  display  of  crime  in  the  youth 

^  Ferri,  "I  nuovi  orizzonti,"  2d  ed.  (1884),  p.  241;  Filippi,  "Delia  precocity 
recidiva  nella  delinquenza"  (Florence,  1884);  Fliche,  "Comment  on  devient  cri- 
minel";  "Etude  sur  la  precocite  des  malfaiteurs"  (Paris,  1886).  See  also  Joly 
"La  France  criminelle"  (Paris,  1889),  Ch.  VI;  Ferriani,  "Minorenni  delinquenti" 
(Milan,  1895);  Morrison,  "Juvenile  Offenders"  (London,  1896);  Katsch,  "Jug- 
endliches  Verbrecherthum"  (Forbach,  1896);  Heim,  "Die  jiingsten  und  die  Slt- 
esten  Verbrecher"  (Beriin,  1897). 

*  See  Chap.  Ill,  post.  » See  Chap.  HI. 


§  97]      NATURAL  CLASSIFICATION  OF  CRIMINALS         147 

of  individuals  belonging  to  these  two  categories  is  common  to  all 
comitries.  This  is  consistently  shown  by  the  figures,  by  statistics 
in  a  constant  progression.^  Jurists  and  legislators  of  the  classical 
school  have  been  forced  to  recognize  and  consider  it  during  the  last 
two  or  three  years  with  an  unaccustomed  activity.  And  natu- 
rally they  have  also  been  compelled  to  seek  scientific  criteria  and 
practical  measures  from  the  positive  school  in  order  to  most 
quickly  combat  the  evil.  These  measures  look  especially  to  the 
prevention  of  contact  between  young  delinquents  and  hardened 
criminals,  —  a  matter  which  is  of  vast  importance  and  which 
positivist  writers  have  so  vainly  proven.  Statistics  show  a  greater 
number  of  precocious  criminals  in  the  criminal  forms  where  the 
congenital  tendency  prevails  (assassination  and  homicide,  viola- 
tion, arson,  armed  robbery,  qualified  thefts)  or  where  there  is 
acquired  habit  (simple  thefts,  begging,  vagabondage).  For  the 
latter  group  the  measures  adopted  will  show  all  the  efficacy  which 
it  is  possible  for  them  to  have  with  a  penal  and  penitentiary  organ- 
ization still  impregnated  with  traditionalism,  in  the  midst  of  a 
social  organization  wherein  are  continued  the  economic  and  moral 
conditions  that  make  for  habitual  delinquency.  Side  by  side 
with  the  specific  mark  of  precocity  in  born-criminals  and  in  habit- 
ual criminals,  another  mark  is  found;  recidivity.  "The  great 
number  of  recidivists,  tried  annually,  proves  that  thieves  practice 
their  industry  as  a  regular  profession.  Certainly  the  thief  who 
has  tasted  prison  life  will  return.  The  boasted  model  prison 
where  he  is  guarded,  clothed,  fed,  and  warmed  at  the  expense  of 
the  State  is  so  far  from  reforming  him  that,  scarcely  liberated,  he 
returns  to  his  trade.  The  police  arrest  him  and  turn  him  over 
to  the  law.  After  a  shorter  or  longer  time  the  law  turns  him  over 
to  society,  from  which  the  police  take  him  again  and  so  on."* 
"There  are  very  few  cases  where  a  man,  woman,  or  child  having 
once  become  a  thief  ceases  to  be  such.  The  exceptions  are  so 
rare  that  they  do  not  deserve  citation.  Whatever  be  the  reasons, 
the  fact  is  that  a  thief  is  seldom  reformed,  I  was  about  to  say 
never."'  "When  we  succeed  in  changing  an  old  thief  into  an 
honest  workman  we  shall  also  be  able  to  change  an  old  fox  into  a 

^  See  Bosco,  "La  delinquenza  in  varii  stati  d'Europa,"  which  is  the  latest  and 
most  complete  study  of  comparative  criminal  statistics,  in  the  B.  I.  I.  S.,  vol.  VIII 
(Rome,  1903). 

2  "The  London  Police,"  in  the  "Quarterly  Review"  (1871). 

'  Wakefield,  Director  of  Newgate  Prison,  cited  by  Girardin,  "Du  droit  de 
punir"  (Paris,  1871). 


148 


DATA  OF  CRIMINAL  ANTHROPOLOGY 


[§97 


domestic  dog."  ^  To  these  observations  of  practical  men,  and 
those  which  I  have  cited  earher,  must  be  added  the  distinction  we 
have  made  between  the  incorrigibles  by  birth  and  those  who 
become  such  through  the  cooperation  of  the  social  or  prison  en- 
vironment. Recidivity  among  the  former  is  unfortunately 
unavoidable.  Among  the  latter  it  can  be  prevented  to  a  great 
degree  by  ameliorations  in  city  and  prison.  In  any  event,  statis- 
tics give  striking  data  on  habitual  recidivity. 

In  the  work  of  Yvemes  ^  we  find  in  the  total  of  recidivists : 


Rbciditist 
per  100 

England 

(Convicts) 
1871 

Switzerland 

(Thefts) 

1871 

France 

(Accused  and 

arraigned) 

1826-1874 

Italy 

(Assizes  and 

tribunals) 

1870 

Once 

Twice 

Thrice 

38 
18 
44 

54 

28 
18 

45 
20 
35 

60 
30 
10 

In  the  prison  statistics  of  Prussia,  reported  by  Starke,'  we  find 
in  the  total  of  recidivists,  the  following  percentage  for  the  years 
1877-1878,  1881-1882: 


Reciditistb 

Times 

Percentage 

1 

17.2 

2 

16.4 

S 

15.8 

4 

12.7 

5 

9.8 

6  or  more 

28.1 

At  the  Penitentiary  Congress  of  Stockholm  it  was  shown  that 
in  Scotland  1.6  per  cent,  of  the  convicts  were  recidivists  more  than 
twenty  times,  and  0.3  per  cent,  more  than  fifty  times;  and  among 
women,  well  known  to  be  more  obstinate  in  recidivity,  15.4  per 
cent,  were  recidivists  more  than  twenty  times  and  5.8  per  cent. 

*  Thomson,  "The  Psychology  of  Criminals,"  p.  27. 

*  Yvemis,  "La  r^cidive  en  Europe"  (Paris,  1874). 

*  Starke,  "Verbrechen  imd  Verbrecher  in  Preussen,"  p.  229. 


§97]      NATURAL  CLASSIFICATION  OF  CRIMINALS         149 

more  than  sixty  times. ^  For  the  Scotch  prisons  during  ten  years 
the  following  proportions  ^  of  the  total  number  of  convicts  are 
given: 


Recidivists 

Times 

Percentage 

1 

15.7 

2  to  3 

12.9 

4  to  5 

5.9 

6  to  10 

5.6 

10  to  20 

4.6 

20  to  50 

3.5 

more  than  50 

1.2 

Total 

49.4 

At  the  Congress  of  Social  Sciences,  held  at  Liverpool  in  1876, 
Chaplain  Nugent  said  that  in  1874  more  than  4,107  women  were 
recidivists  four  or  more  times  "and  that  a  great  number  of  them 
had  been  declared  incorrigible,  having  been  in  prison  twenty, 
thirty,  forty,  or  fifty  times.  One  of  them  had  been  in  prison 
more  than  130  times."  ' 

From  my  study  of  346  convicts  at  Pesaro  and  353  prisoners  at 
Castelfranco,  I  have  compiled  the  following  data: 


RECIDIVI8T8 

Convicts 

Times 

AT  Pesaro 

AT  Castelfranco 

Percentage 

Percentage 

1 

81.2 

26.0 

2 

12.5 

16.5 

3 

3.1 

14.6 

4 

3.1 

10.8 

5 

0.8 

6.6 

6 

0.8 

5.2 

7 

1.6 

7.1 

8 

1.6 

2.8 

9 

1.6 

2.8 

10 

1.6 

2.3 

11 

1.6 

0.9 

12 

1.6 

0.5 

13 

1.6 

0.9 

14 

1.6 

1.4 

15 

1.6 

0.9 

20 

1.6 

0.5 

Total  of  recidivists 

128 

212 

>  C.  R.  C.  (Stockholm,  1879),  II,  142. 

2  Oettingen,  "Die  Moralstatistik,"  2d  ed.  (Erlangen,  1874),  p.  448. 

'  Nugent,  "Rapporto  al  congreso  di  Liverpool,"  in  R.  C,  VII,  p.  42. 


150  DATA  OF  CRIMINAL  ANTHROPOLOGY  [§  98 

Although  these  figures  are  more  exact  than  those  of  general 
statistics  because  they  are  the  result  of  individual  researches, 
they  still  fall  short  of  the  truth.  In  any  event,  they  throw  light 
on  chronic  recidivity  which  is  naturally  less  for  the  deUcts  pun- 
ished with  long  terms  (because  of  the  imprisonment  itself).  They 
show  it  to  be  a  significant  symptom  of  both  individual  and  social 
pathology  in  the  two  classes  of  born  delinquents  and  delinquents 
by  acquired  habit. 

§  98.  Two  Objections  to  Precocity  as  a  Mark  of  the  Categories  of  Bom 
and  Habitual  Criminals. 

Lombroso  ^  has  made  two  objections  in  connection  with  these 
two  characteristics  which  I  have  attributed  to  born  delinquents 
and  delinquents  by  acquired  habit,  and  reached  the  conclusion 
that  the  absence  of  precocity  and  of  recidivity  is  not  peculiar  to 
occasional  (chance)  delinquents.  The  first  objection  to  my  figures 
rests  on  the  ground  that  I  "  should  have  given  not  only  the  most 
but  also  the  less  serious  congenital  forms,  adding  the  delinquents 
by  acquired  habit  to  the  born  delinquents.  Now,  in  infancy  the 
acquisition  of  habit  cannot  be  of  long  standing;  and  in  any  event, 
if  one  wished  to  adhere  strictly  to  the  statistical  formulae  of  reci- 
divity and  precocity,  very  slight  delicts  such  as  pocket-picking, 
and  begging  would  have  to  be  reckoned  among  those  of  the  born- 
criminals."  2  The  second  is  that  the  study  of  Marro  on  the  differ- 
ent kinds  of  offenders,  "  when  well  studied,  grouped,  and  compared 
from  the  standpoint  of  recidivity  and  precocity  immediately  bring 
out  the  fact  that  the  most  trivial  delicts  (idleness,  petty  assaults, 
pocket-picking,  and  theft)  furnish  the  maximum  of  recidivity  and 
precocity,  while  vice  versa  the  maximum  of  great  crimes  (murder, 
swindling,  rape)  coincides  with  the  minimum  of  recidivists  and 
precocity." '  These  objections  by  Lombroso  are  based  solely 
upon  one  mistake  into  which  I  also  fell  when  I  began  my  anthro- 
pological studies  on  the  convicts  at  Pesaro  and  on  the  prisoners 
at  Castelfranco.  In  the  begioning  I  had  considered  the  galley 
convicts  at  Pesaro  as  born-criminals  and  the  prisoners  at  Castel- 
franco as  occasional  delinquents,  taking  the  gravity  of  the  crime 
as  the  test  of  congenital  or  occasional  delinquency,  and,  hence, 
considering  as  born-criminals  those  who  had  been  sentenced  for 
the  gravest  crimes  (murder,  manslaughter,  or  rape)  and  as  occa- 

1  "L'uomo  delinquente,"  5th  ed.,  vol.  II,  p.  487.  *  Ibid.,  p.  487. 

»  Ibid.,  p.  489. 


§99]      NATURAL  CLASSIFICATION  OF  CRIMINALS         151 

sional  offenders  those  who  had  been  convicted  of  lesser  offenses 
(blows,  pocket-picking,  theft,  or  vagabondage).  An  observation 
by  Regalia^  after  my  studies  were  communicated  to  him  brought 
the  error  to  my  attention  and  showed  that  the  gravity  of  the  of- 
fense is  not  the  exclusive  and  complete  criterion  of  the  different 
classes  of  delinquents.  In  fact,  as  Garofalo  also  observes,  if  as 
a  general  rule  those  who  commit  the  most  odious  and  savage 
crimes,  particularly  when  they  are  precocious  offenders,  are  born- 
criminals,  it  does  not  on  that  account  follow  that  the  authors  of 
trivial  offenses  are  only  occasional  criminals.  Thus  theft,  which 
is  so  frequent,  may  be  committed  either  by  occasional  delinquents 
(who  remain  such  or  become  habitual  according  to  the  conditions 
of  environment)  or  by  true  born-criminals.  Hence,  the  objection 
advanced  by  Lombroso,  that  precocity  is  observed  more  often  in 
slight  than  in  serious  offenses  (as  I  myseff  have  observed)  is  not 
equivalent  to  saying  that  precocity  is  observed  more  frequently 
among  occasional  than  among  born-criminals.  Many  individuals 
begin  a  life  of  theft  and  vagabondage  early  simply  because  they  are 
born  thieves  or  vagabonds  (neurasthenic)  or  else  because  their 
parents  force  them  to  it  and  they  then  become  delinquents  by 
acquired  habit.  Nor  is  it  true  to  say,  as  Lombroso  says,  that  in 
infancy  the  acquisition  of  the  habit  cannot  be  of  long  standing; 
since  every  one  knows  that  on  the  contrary,  abandoned  children 
are  forced  to  theft  and  begging  when  mere  babies  and  that  some 
individuals  count  their  convictions  by  the  dozen  before  they  have 
reached  even  their  twentieth  year. 

§  99.   Objection  to  Recidivity  as  a  Mark  of  the  Categories  of 
Bom  and  Habitual  Criminals. 

As  to  recidivity,  of  which  the  causes  are  in  part  the  same  and 
in  part  different  from  those  of  precocity,  Lombroso  admitted  what 
I  maintained,  that  the  gravest  crimes,  involving  longer  penalties, 
must  necessarily  show  lesser  recidivity.  But  it  is  one  thing  to 
compare  the  precocity  and  recidivity  of  different  kinds  of  crimes 
among  themselves,  for  example,  observing  that  thieves  are  more 
precocious  than  murderers,  and  quite  another  to  say  as  I  have 
said,  that  aside  from  those  guilty  of  petty  assaults  (which  are 
frequently  among  minors  homicide  in  the  germ),  the  precocity 
is  most  frequently  observed  in  the  crime  of  a  congenital  tendency 
(murder,  rape  and  robbery)  or  of  habit  (thefts,  begging,  vaga- 
1  A.  P.  (1881),  p.  475. 


158  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  100 

bondage).  That  thieves  may  be  a  httle  more  or  less  precocious 
than  murderers  does  not  contradict  the  fact  that  of  the  two  hun- 
dred and  one  crimes  of  the  Penal  Code  only  those  which  I  have 
considered  pecuHar  to  congenital  delinquency  are  more  frequently 
committed  by  minors.  This  confirms  the  assertion  that  the 
crimes  generally  committed  by  occasional  delinquents  ^  are  not 
committed  at  a  precocious  age  and  do  not  supply  many  recidi- 
vists, quite  the  reverse  from  what  is  seen  in  the  forms  of  natural 
deUcts,  which  are  generally  committed  by  born-criminals  and 
habitual  criminals. 

§  100.  The  Criminal  through  Passion  Category. 

In  addition  to  the  categories  of  which  we  have  just  spoken 
there  remain  the  last  two:  criminals  through  passion  and  crim- 
inals by  occajsion  (chance  criminals).  Criminals  through  excess  of 
passion  ("delinquenti  per  impeto  di  passione"),  who  form  a  more 
distinct  variety  of  occasional  criminals,  show  certain  character- 
istics which  easily  distinguish  them.  According  to  Lombroso,'' 
who  even  in  his  second  edition  supplementing  Despine  ^  and  Bit- 
tenger,*  gave  a  really  complete  list,  we  are  able  to  say  first  of  all 
that  these  criminals  who  show  especially  the  type  of  "irresistible 
impulse"  ^  commit  crimes  against  the  person  and  are  quite  rare. 
Thus,  of  seventy-one  criminals  through  passion  studied  by  Lom- 
broso,*  sixty-nine  were  guilty  of  either  homicide  or  assault;  six 
had  been  convicted  of  robbery;  three  of  arson  and  one  of  rape. 
As  to  their  number,  Lombroso,  like  Bittinger  and  Guillaume,^  as- 
serted that  criminals  through  passion  number  five  per  cent,  of  the 
total.     This  figure  is  certainly  exaggerated.     In  the  first  place, 

«  Woiinds  and  voluntary  blows;  resistance,  insult,  violence  against  public 
oflBcers;  injury  to  immoveables;  defamations  and  insults;  arbitrary  exercise 
of  rights;  refusal  of  service  legally  due;  delicts  of  the  press;  embezzlement, 
bribery,  embracery,  abuse  of  authority  by  public  oflBcials;  false  witness;  violation 
of  domicile;  slander;  attempt  at  personal  liberty;  exposition,  substitution,  etc. 
of  infants;  bankruptcy;  duel;  abortion;  adultery;  involimtary  homicide;  invol- 
untary woundings;   illegal  practice  of  medicine  and  pharmacy;    rural  delicts,  etc. 

*  "L'uomo  delinquente,"  5th  ed.,  II,  pp.  204  et  seq. 

'  Despine,  "Psychologic  naturelle,"  I,  278,  II,  215  et  seq. 

*  Bittinger,  "Crimes  of  Passion"  (London,  1872). 

^  This  term  expresses  inexactly  certain  real  facts  and  the  term  has  been  sin- 
gularly abused,  but  is  it  projjer  to  entirely  banish  it  from  criminal  law  as  the  new 
code  has  done.'  See  also  Ferri,  "L' article  46  codice  penale  nelle  corti  d'assise," 
in  the  volume  "Difese  penale  e  studi  di  giurisprudenza"  (Turin,  1899),  p.  380. 

*  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  II,  p.  221. 

'  GuiUaume,  "Rapporto  al  congresso  penitenziario  di  Londra,"  in  Beltrani, 
"Stato  attuale  della  riforma  penitenzionaria"  (Rome,  1874),  p.  321. 


§  100]    NATURAL  CLASSIFICATION  OF  CRIMINALS         153 

Guillaume  says  that  crimes  committed  through  passion  furnish 
five  per  cent,  not  of  convicts  in  general  but  of  persons  convicted 
through  correctional  channels.  Bittinger  makes  a  general  com- 
parison between  the  crimes  through  passion  and  those  committed 
on  reflection,  which  is  seemingly  very  different  from  Lombroso's 
comparison  of  delinquents  through  passion  with  habitual  delin- 
quents. In  fact,  we  know  that  real  delinquents  through  an  access 
of  passion  are  for  the  most  part  homicidal.  When  we  observe 
that  the  total  number  of  murders,  including  manslaughter,  in 
Italy  is  scarcely  four  per  cent,  of  the  whole  number  of  convicts 
of  every  kind,  and  in  France  0.3  per  cent.,  we  see  clearly  that  de- 
linquents through  passion  cannot  constitute  five  per  cent,  of  the 
total.  In  the  typ)e  which  is  pecuHar  to  them,  they  scarcely  furnish 
five  per  cent,  of  the  sanguinary  crime.  In  fact,  this  correction 
was  adopted  by  Lombroso  in  his  fifth  edition.^  These  are  the 
individuals  whose  lives  have  previously  been  blameless  —  men  of  a 
sanguine  or  nervous  temperament  with  exaggerated  sensibility, 
quite  the  reverse  of  the  born  and  habitual  criminals.  They  are 
sometimes  of  a  temperament  closely  related  to  that  of  the  insane 
or  epileptic,  of  which  their  criminal  rage  may  be  only  a  disguised 
manifestation.  Most  often  (especially  in  the  case  of  women)  they 
commit  the  crime  in  their  youth  under  the  impulse  of  uncontrolled 
passion,  like  anger,  jealousy,  or  shame.  Their  emotion  is  violent 
before,  during,  and  after  the  crime,  which  is  not  committed  secretly 
or  stealthily  but  openly  and  often  by  ill-chosen  means,  the  first 
which  come  to  hand.  There  are  sometimes,  however,  criminals 
through  passion  who  premeditate  and  cunningly  execute  a  crime 
either  because  of  a  less  impulsive  temperament  or,  in  the  cases  of 
endemic  crime,  under  the  influence  of  prejudices  and  pubhc  opin- 
ion. That  is  why  in  criminal  psychology  premeditation  has  no 
absolute  value  in  distinguishing  the  born-criminal  from  the  crim- 
inal through  passion;  for  premeditation  depends  more  upon  in- 
dividual temperament  than  upon  anything  else,  and  is  found 
equally  in  crimes  committed  by  all  the  anthropological  types.^ 

*  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  pp.  204  et  seq. 

*  Ferri,  "  Provocazione  e  premeditazione,"  in  the  volume  "Difese  penale  e 
studi  di  giurisprudenza,"  p.  436.  In  that  monograph,  and  in  the  second  edition  of 
this  book  (1884),  I  established  the  distinction  between  social  and  anti-social  pas- 
sions, both  as  a  positive  criterion  of  responsibility  as  we  shall  see  in  Chap.  Ill,  and 
as  the  psychological  characteristic  of  the  criminal  through  passion.  Lombroso  and 
I  have  always  spoken  of  the  criminal  moved  by  a  social  passion  (love,  honor,  etc.) 
—  a  point  on  which  Puglia  insists,  "Intomo  ai  delinquenti  per  passione"  in  the 
Riv.  career.  (May,  1897),  calling  them  "delinquents  by  irresistible  moral  impul- 


154  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  101 

Among  the  other  characteristics  peculiar  to  criminals  through 
passion  is  the  fact  that  the  determinant  psychological  cause  is 
proportionate  to  the  crime  and  that  the  crime  (I  must  add)  is  its 
own  object  and  not  a  means  to  the  commission  of  other  crimes. 
They  do  not  hesitate  to  avow  their  misdeed,  and  their  excessive 
repentance  may  lead  to  suicide.  In  fact  many  commit  suicide 
immediately  or  a  short  time  after  the  criminal  attack.  If  they 
are  convicted  (which  rarely  happens)  they  continue  to  show  re- 
pentance and  improve,  or  rather  they  are  not  corrupted  in  prison, 
thus  afiFording  a  small  number  of  obvious  cases  from  which  some 
observers  believe  themselves  warranted  in  drawing  the  conclusion 
that  the  improvement  of  offenders  is  constant.  On  the  contrary, 
however,  improvement  is  unknown  among  born  and  habitual 
criminals.  Criminals  through  passion  show  few  or  none  of  the 
characteristics,  such  as  I  have  given  in  studying  the  physiognomies 
of  homicides.  These  are  the  distinctions  of  the  criminal  by  access 
of  passion.  They  are,  however,  less  marked  in  countries  where 
certain  crimes  against  the  person  are  endemic,  such  as  homicide 
for  revenge  or  on  a  point  of  honor  in  Corsica  and  Sardinia,  or  the 
poHtical  homicides  of  a  few  years  ago  in  Russia  and  Ireland. 

§  101.  The  Occasional  Criminal  Category. 

There  is  finally  the  category  of  occasional  criminals  ("delin- 
quenti  d'occasione").  These  chance  criminals  have  not  received 
from  nature  an  active  tendency  towards  crime  but  have  fallen  into 
it,  goaded  by  the  temptation  incident  to  their  personal  condition 
or  physical  and  social  environment  and  who  do  not  repeat  their 
offense  if  these  temptations  are  removed.  They  commit  crimes, 
therefore,  which  do  not  belong  to  natural  delinquency,  and  even 
in  the  commission  of  crimes  against  the  p)erson  or  property  they 
act  under  individual  and  social  conditions  entirely  different  from 
those  in  which  such  crimes  are  committed  by  born  criminals  and 
habitual  delinquents.  Assm-edly,  even  in  the  chance  criminal, 
a  part  of  the  causes  which  determine  the  crime  belong  to  the  an- 
thropological order;  since,  without  the  particular  dispositions  of 
the  individual,  the  exterior  impulsions  would  be  insufficient.  For 
example,  in  a  period  of  hard  times  the  whole  population  does  not 

sion."  See  Puglia,  "La  distinzione  dei  delinquenti  di  Lombroso  e  il  diritto 
repressive,"  in  the  "Anomalo"  (March,  1897).  See  also  Bonanno,  "H  delinquente 
per  passione"  (Turin  1896),  p.  37;  Zuccarelli,  "I  passionati  del  bene,"  S.  C.  (15 
August,  1894). 


§  101]    NATURAL  CLASSIFICATION  OF  CRIMINALS         155 

devote  itself  to  theft.  One  man  prefers  the  sufferings  of  honest 
and  undeserved  poverty,  another  goes  so  far  as  to  beg;  and  even 
among  those  who  descend  to  crime,  some  are  content  with  larceny, 
while  others  commit  burglary  or  highway  robbery.  But  since 
there  are  no  absolute  distinctions  in  nature,  the  fundamental 
difference  between  the  chance  criminal  and  the  bom-criminal 
consists  always  in  this  fact,  that  in  the  latter  the  external  stimulus 
is  secondary  when  compared  to  the  internal  criminal  tendency 
which  in  itself  has  a  centrifugal  force  impelUng  the  individual  to 
crime;  while  in  the  former  is  found  rather  a  feebleness  of  resis- 
tance to  external  stimulus,  which  consequently  becomes  the  prin- 
cipal determinant  force.  The  incident  which  provokes  the  crime 
in  the  case  of  the  born-criminal  is  simply  the  point  of  application 
of  a  preexisting  instinct,  so  to  speak.  It  is  less  an  occasion  than 
a  pretext.  With  the  occasional  criminal  it  is,  on  the  contrary,  the 
real  stimulus  which  vitalizes  the  latent  criminal  spark.  In  the 
born-criminal  it  is  a  fact  which  determiaes  the  discharge  of  a 
persistent  distinctive  force;  in  the  chance  criminal  it  is  a  fact 
which  simultaneously  causes  the  growth  and  explosion  of  a  crim- 
inal instinct.  For  this  reason  Lombroso  ^  calls  occasional  deUn- 
quents,  criminaloids  ("criminaloidi")  to  indicate  that  their  organic 
and  psychic  constitution  presents  abnormahty,  in  lesser  degree 
than  is  found  in  true  criminals  or  born-criminals.  The  relation 
expressed  is  analogous  to  those  shown  by  the  words  metal  and 
metaloid  or  epileptic  and  epUeptoid.  Such  a  definition,  however, 
destroys  the  criticisms  that  Lombroso  himself  made  of  the  idea 
of  the  occasional  criminal  category  when  he  said,  as  did  Benedikt 
at  the  Congress  of  Rome  and  as  Sergi  ^  has  later  repeated,  that 
"all  criminals  are  born-criminals,"  and  hence  the  true  occasional 
criminal  or  the  normal  man,  urged  to  crime  by  occasion  alone,  does 
not  exist.  For  my  part,  in  accord  with  Garofalo,  even  in  the 
second  edition  of  this  work  (1884),  I  have  never  expressed  any  such 
conception  of  the  occasional  criminal.  But  on  the  contrary  I 
have  always  said,  as  Lombroso  himself  admits  a  little  farther  on, 
quoting  my  words,^  that  there  is  only  a  difference  of  degree  and 
modality  between  the  born  and  the  occasional  criminal,  —  a  thing, 
moreover,  which  is  true  of  all  the  categories  of  delinquents.     Of 

'  "L'uomo  delinquente,"  5th  ed.,  II,  p.  507. 

*  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  II,  p.  204;    II,  p.  488;   A.  C. 
A.  C.  (Rome,  1887),  p.  140;   Sergi,  "Le  degenerazioni  umane,"  p.  103. 
»  "L'uomo  delinquente,"  5th  ed.,  vol.  II,  p.  537. 


156  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  101 

the  two  conditions  which  psychologically  determine  crime  —  moral 
insensibility  and  lack  of  foresight  ("  improvidenza ")  —  the  crime 
of  occasion  is  traceable  to  the  latter,  while  congenital  and  habitual 
delinquency  is  principally  traceable  to  the  former.  In  the  bom- 
criminal  it  is  lack  of  social  feeling  which  prevents  him  from  recoil- 
ing before  crime.  In  the  occasional  criminal  this  social  sense  exists 
or  is  much  less  obtuse,  and  not  being  seconded  by  a  sufficiently 
Uvely  appreciation  of  the  consequences,  it  yields  to  the  exterior 
impulsion,  without  which  it  was  strong  enough  and  would  have 
remained  strong  enough  to  hold  the  individual  in  the  straight 
path.  In  every  man,  no  matter  how  pure  and  honest  he  may  be, 
the  fugitive  thought  of  a  dishonest  or  criminal  act  occurs  on  certain 
seductive  occasions.  But  in  the  honest  man,  because  of  his  or- 
ganic and  moral  fiber,  this  tempting  image  which  immediately 
awakens  a  vivid  idea  of  the  possible  consequences  is  overcome  by 
his  strong  psychic  organization.  With  a  man  of  less  strength  and 
less  foresight  it  overpowers  the  resistence  of  a  weak  moral  sense 
and  finally  conquers,  because,  as  Victor  Hugo  says,  "in  the  face 
of  duty,  doubt  is  defeat."^  A  criminal  by  passion  is  a  man  with 
sufficient  strength  to  resist  ordinary  and  mild  temptations  but 
without  sufficient  force  to  resist  the  psychological  tempest  which 
sometimes  becomes  so  violent  that  no  man,  be  he  ever  so  strong, 
coidd  resist  it.  The  forms  of  occasional  delinquency  that  we  have 
enumerated  contain  the  reason  for  their  origin,  in  the  accidental 
character  which  distinguishes  them.  Folio wdng  Lombroso,^  the 
general  stimulants  of  age,  sexuahty,  p>overty,  influence  of  the 
weather,  of  the  moral  environment,  of  alcoholism,  of  personal 
circumstances,  and  of  imitation  (of  which  Tarde  has  undoubtedly 
exaggerated  the  casual  importance  in  social  facts  but  showing 
fully  the  part  which  they  play  in  human  activity)  ^  must  be  taken 

^  As  an  example,  I  recall  the  case  of  the  alienist.  Morel,  who  relates  it  himself. 
Crossing  a  bridge  one  day  in  Paris,  he  saw  a  workman  who  was  leaning  on  the 
parapet  and  gazing  over  it;  he  felt  a  homicidal  impulse  traverse  his  brain  like  a 
flash  of  lightning  but  he  took  to  his  heels  in  order  not  to  yield  to  the  temptation 
to  throw  the  man  into  the  water.  The  case  of  a  nurse  of  Von  Humboldt  is  related 
by  Esquirol,  who  seeing  and  touching  the  rosy  flesh  of  a  new  bom  babe  was  seized 
with  the  temptation  to  kill  it  and  ran  to  warn  other  persons  in  order  to  avoid  a 
tragedy.  We  recall  also  the  literary  man  of  whom  Briere  de  Boismont  speaks  in 
"Suicide"  (1865),  p.  335,  who  "in  looking  at  a  painting  at  the  Exposition  was 
seized  with  such  a  desire  to  destroy  it  that  he  had  scarcely  time  to  ^v-ithdraw  in  the 
greatest  haste."    For  other  instances  see  Ferri,  "L'Omicidio,  pp.  530,  531. 

*  Lombroso,  "Delinquenti  d'occasione,"  A.  P.,  II,  3;  "Uomo  delinquente," 
5th  ed.,  p.  482  et  seq. 

*  Tarde,  "La  psychologic  en  economie  politique,"  R.  P.  (1881),  p.  401;   "Dea 


§  102]    NATURAL  CLASSIFICATION  OF  CRIMINALS         157 

into  consideration.  Thus  Lombroso  distinguishes  two  varieties  of 
occasional  criminals:  on  the  one  hand,  the  pseudo-criminals,  i.  e.y 
normal  men  who  commit  involuntary  crimes,  political  crimes,  or 
misdeeds  which  imply  no  perversity  and  involve  no  damage  to 
society,  although  the  law  considers  them  criminal;  on  the  other 
hand,  the  criminaloids,  who  commit  ordinary  crimes  but  who  are 
differentiated  from  ordinary  criminals  for  the  reasons  above  given. 

§  102.  Difference  Between  Categories  One  of  Degree. 

Apropos  of  these  anthropological  categories,  we  would  make 
a  last  general  observation  —  one  which  meets  certain  objections 
frequently  made  by  those  syllogistic  critics  of  criminal  an- 
thropology who  have  never  personally  observed  nor  studied 
criminals.  In  the  first  place,  *the  differences  between  these 
five  classes  of  criminals  are  only  differences  of  degree  and  mo- 
dality, both  in  their  organic  and  psychic  traits  and  in  the  con- 
currence of  the  physical  and  social  environment.  There  is  no 
essential  difference  between  the  groups  of  any  natural  classifica- 
tion. This  is  not  only  true  of  mineralogy,  botany,  zoology,  or 
general  anthropology,  but  of  criminal  anthropology  as  well.  It 
does  not  take  away  either  experimental  solidity  or  practical  im- 
portance from  the  natural  classification.  The  same  is  true  of 
the  classifications  of  criminal  anthropology.  In  natural  history 
we  pass  by  degrees  and  shades  from  the  inorganic  world  to  the 
organic  (since  even  in  minerals  there  is  a  minimum  degree  and  a 
first  form  of  life  as  is  shown  by  the  laws  of  crystallization),  and 
biology  is  only  an  ulterior  evolution  of  physics  and  chemistry.^ 
In  the  organic  world  we  pass  by  degrees  and  shades  from  proteids 
to  vegetation,  then  to  animals  and  their  species  which  become 
more  diversified  as  they  multiply.  So,  also,  in  criminal  anthro- 
pology, we  pass  gradually  from  the  insane  criminal  to  the  born- 
criminal  passing  over  the  morally  insane  and  epileptic  delinquents. 
From  the  born-criminal  we  pass  to  the  occasional  criminal  meeting 

traits  communs  de  la  nature  et  de  I'histoire,"  id,.  (1882),  pp.  270  el  seq.;  "L'arch6- 
ologie  et  la  statistique,"  id.  (1889),  pp.  363  and  492,  works  collected  and  supple- 
mented in  the  volume  "Les  lois  de  I'imitation,"  2d  ed.  (Paris,  1895).  See  also 
Morici,  " L'imitazione  nella  vita  sociale  e  nella  affezione  nervose"  (Palermo,  1888). 

For  criticism  see  Ferri,  "La  teoria  sociologica  del  Tarde,"  S.  P.  (September, 
1895). 

^  Pilo,  "La  vita  nei  cristalli  —  Prime  Linee  di  una  futura  biologia  minerale, " 
R.  F.  S.  (December,  1885);  Dal  Pozzo  di  Mombello,  "  L'evoluzione  dall'  inorganico 
air  organico,"  id.  (December,  1886) ;  Morsdli,  "  Lezioni  di  antropologia  generale  " 
(Turin,  1889-1899). 


158  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  103 

on  the  road  the  criminal  by  acquired  habit  who  begins  as  an  occa- 
sional wrongdoer  and  finally  ends,  through  acquired  degeneracy, 
in  showing  the  organic  characteristics  and  especially  the  psychic 
traits  of  the  born-criminal.  Finally,  we  pass  from  the  occasional 
criminal  to  the  criminal  by  passion  who  is  of  a  more  distinct 
variety,  since,  with  his  neurotic,  hysterical,  or  epileptoid  or  mat- 
toid  temperament,  the  criminal  by  passion  often  resembles  or  is 
partly  merged  in  the  insane  criminal.^ 

§  103.  Application  of  Class  Division  of  Criminals. 

Thus  in  actual  everyday  life,  as  in  the  study  of  every  living 
being,  intermediate  types  are  found  —  and  this  is  why  the  idea 
of  species  and  variety  is  altogether  relative.  In  examining  crim- 
inals, we  find,  and  in  great  number,  types  intermediate  between 
the  anthropological  categories,  it  being  always  understood  that 
the  complete  and  distinct  types  are  the  least  common.  Thus  it 
has  rarely  happened  that  the  Courts  of  Justice  have  had  to  deal 
with  an  accused  person  who  completely  and  clearly  showed  the 
characteristics  of  any  anthropological  type.  The  law  and  the  judge 
require  the  medico-legal  expert  to  describe  the  accused  in  mono- 
syllabic answers  of  yes  and  no  when  interrogated  as  to  his  sanity, 
beheving  that  all  Uving  nature  can  be  bound  up  in  juridical  syl- 
logisms. Very  often,  however,  all  that  the  expert  can  answer  is 
that  the  accused  is  in  a  state  between  sanity  and  insanity  or 
between  insanity  and  congenital  delinquency.  Yet,  this  does 
not  imply  the  impossibility  of  applying  this  classification  in  prac- 
tice to  penal  legislation.  Such  an  apphcation  is  the  task  of  crim- 
inal sociology. 

A  delinquent  is  already  classified  with  precision  when  we  are 
able  to  say  that  he  stands  midway  between  two  determined 
categories.  To  say  the  one  accused  is  placed  between  the  insane 
criminal  and  the  born-criminal,  another  between  the  insane 
criminal  and  the  criminal  by  passion  or  between  the  occasional 
delinquent  and  the  habitual  delinquent,  is  to  fix  the  anthropologi- 
cal type  with  as  much  safety  as  when  a  greater  number  of  traits 
and  circumstances  of  fact  place  him  definitely  in  one  of  these 
anthropological  categories.  As  to  the  objection  that  criminal 
anthropology  cannot  practically  determine  to  what  anthropolo- 

*  For  this  reason  Bonono,  "H  delinquente  per  passione,"  p.  76,  rightly  distin- 
guishes two  varieties  of  criminals  by  passion:  those  who  resemble  the  insane  or 
epileptoid  criminal,  and  those  who  represent  the  real  type. 

V 


§  104]    NATURAL  CLASSIFICATION  OF  CRIMINALS         159 

logical  category  the  author  of  a  given  misdeed  belongs  (and  this 
is  one  of  the  subjects  discussed  at  the  Congress  of  Paris  under 
Garofalo's  chairmanship),  that  can  come  only  from  a  man  who 
reasons  from  an  abstract  and  nebulous  image  of  the  delinquent,  an 
image  which  he  draws  in  his  own  mind,  exactly  as  to  the  classical 
criminalists  and  the  codes.  A  personal  examination  of  a  delin- 
quent undertaken  with  sufficient  attainments  in  anthropology 
and  in  criminal  psychology  always  classifies  him.  This  is  some- 
times easy  for  the  distinct  types,  for  often  a  few  symptomatic 
details  of  their  attitude  before,  during,  and  after  the  crime,  with- 
out the  necessity  of  a  direct  personal  examination,^  will  mark 
the  class.  Sometimes  it  is  difficult  because  with  intermediate 
types  it  is  necessary  to  make  a  complete  diagnostic  examination 
of  the  organic,  psychic,  and  social  traits.  In  an  examination  for 
the  anthropological  classification  of  criminals  while  the  organic 
marks  alone  suffice  in  the  clear  cases,  as  in  certain  types  of  born 
homicides,  still,  as  a  general  rule,  the  most  decisive  diagnostic 
value  lies  in  the  psychological  characteristics.  These,  however, 
as  I  have  said  in  speaking  of  the  criminal  type,  should  never  be 
separated  from  the  organic  characteristics,  the  data  furnished  by 
antecedents,  nor  the  actual  circumstances  of  the  crime,  when 
classifying  a  delinquent.  This  is  true  even  when  he  is  classified 
as  insane.  Hence,  as  Garofalo  ^  says,  while  the  classical  criminal 
science  knows  only  two  terms:  crime  and  pimishment;  criminal 
sociology  knows  three:  crime,  the  criminal,  and  the  appropriate 
means  of  social  defense.  I  might  therefore  conclude  that  until 
now  science,  law,  and  although  in  lesser  degree,  practical  justice 
have  punished  the  crime  in  the  delinquent,  for  the  future  we  must 
judge  the  delinquent  in  the  crime. 

§  104.  Ntunerical  Proportions  of  the  Five  Categories  of  Criminals. 
The  general  lines  being  thus  given  for  the  five  categories  into 
which  the  criminal  world  is  divisible,  the  question  naturally  arises: 
what  are  their  respective  numerical  proportions?     The  question 

'  I  proved  this  in  my  diagnosis  of  insanity  in  Caporali  (the  assailant  of  Crispi) 
from  characteristic  data  reported  in  the  papers.  The  diagnosis  (rudimentary  para- 
noia) was  confirmed  at  the  trial  by  the  experts  for  the  prosecution  and  defense. 
See  Ferri,  "Una  diagnosia  distanza,"  in  the  "Difese  penale  e  studi  di  giurispru- 
denza,"  p.  453. 

*  Garofalo,  "Lorsqu'un  individu  a  etfi  reconnu  coupable,  peut-on  ^tablir  par 
I'anthropologie  criminelle  la  classe  criminelle  k  laquelle  il  appartient?"  in  the 
"Actes  du  congr^s  de  Paris"  (Lyons,  1890),  pp.  73  and  353.  See  also  Ferri, 
"  Uno  spiritista  del  diritto  penale,"  A.  P.,  pp.  145  et  seq.,  150  et  seq. 


160  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  105 

is  not  easily  answered,  because  methodical  researches  in  this  di- 
rection are  wanting  and  because  there  is  no  absolute  separation 
between  the  diflferent  classes  of  delinquents.  Hence  one  cannot 
give  a  sufficiently  precise  statistical  or  general  answer.  Content- 
ing ourselves  for  the  present  with  an  approximation,  we  may  say, 
first  of  all,  that  the  categories  of  criminal  insane  and  criminals 
through  passion  are  by  far  the  least  nmnerous  and  give  a  figure 
which,  in  spite  of  the  imcertainty  of  the  data  on  the  subject, 
we  may  estimate  as  fluctuating  between  five  and  ten  per  cent,  of 
the  total  criminahty  in  general.  It  naturally  varies  for  the  dif- 
ferent species  of  crime.  For  the  rest  of  the  mass  of  delinquents 
some  data  which  I  have  given  shows  that  the  two  categories  of 
born-criminals  and  delinquents  by  acquired  habit  should  furnish 
about  forty  to  fifty  per  cent.  These  figures  are,  I  repeat,  only 
approximate,  because  they  vary  with  the  kinds  of  crime.  For 
example,  among  thieves,  the  proportion  of  born-criminals  is  much 
less  than  among  murderers,  robbers,  or  burglars.  It  would  be 
still  less  for  a  series  of  individuals  convicted  of  riot,  petty  assaults, 
or  disorderly  conduct.  Finally,  in  this  connection,  we  should 
remember  that  among  the  forms  of  habitual  delinquency  taken 
generally,  there  may  be  found  some  occasional  delinquents,  es- 
pecially in  homicide  and  theft,  and  that  the  crimes  which  are 
ordinarily  occasional  may  also  be  committed  by  born  or  by  habit- 
ual criminals;  thus  riot  and  petty  assault;  —  crimes  which  show 
the  characteristics,  although  in  lesser  degree,  of  precocity  and 
recidivity. 

§  106.   Other  Classifications  of  Criminals. 

And  now  concluding  the  subject  of  criminal  anthropology, 
there  remains  the  indication  of  a  fact  of  great  scientific  and 
practical  importance.  Since  I  develoi>ed  this  moral  classifica- 
tion of  criminals  in  1880,  in  the  "Archivo  di  psichiatria,"  ^  all 
who  have  studied  criminality  as  a  natural  and  social  phenome- 
non have  recognized  the  necessity  of  not  only  a  simple  classi- 
fication like  the  basic  and  no  longer  recent  distinction  between 
habitual  and  occasional  delinquents  (to  which  for  no  known 
reason  the  International  Union  of  Penal  Law  exclusively  adheres) 
but  also  of  one  which  should  at  the  same  time  be  complex  and 
contain  more  or  less  subdivisions,  according  to  the  different 
criteria  adopted.  Aside  from  Royce,  Guyau,  Siciliani,  Tallack, 
1  A.  P.,  (1880),  I.  474. 


§  105]    NATURAL  CLASSIFICATION  OF  CRIMINALS         161 

Carrau,  Garofalo,  Fouillee,  Espinas,  Reinach,  Ten  Kate  and 
Pavlovski,  Soury,  Oettingen,  Desportes,  Du  Cane,  Zuecarelli, 
Acollas,  Beaussire,  Joly,  Binswanger,  Krohne,  Proal,  Olrik,^ 
and  others  who  have  resumed  the  distinction  between  habitual 
and  occasional  criminals,  and  aside  from  the  great  majority  of 
positivists  who  have  accepted  my  classification,  there  are  other 
observers  who  have  proposed  different  classifications.  I  shall 
not  restate  the  long  review  of  these  given  in  my  Italian  edi- 
tions, but  shall  refer  to  only  the  principal  ones.  The  authors 
of  the  others  are  Minzloff,  Le  Bon,  Puglia,  Tamassia,  Porto, 
Lucas,  Liszt,  Medem,  Saleilles,  Fohring,  Poletti,  Badik,  Krauss, 
Benedikt,  Bianchi,  Marro,  De  Bella,  Topinard,  Joly,  Garofalo, 
Yvernes,  Sergi,  Foinitzki,  Pelman,  Bonfigli,  Baviera,  Salillas, 
PeUizari,    Severi,  Riviere,   Ziino   and  Perrier.^    Lacassagne  dis- 

1  Royce,  "Deterioration  and  Race  Education  "(Boston,  1878),  pp.  29  et  seq.; 
Ouyau,  "La  morale  anglaise  contemporaine"  (Paris,  1879),  p.  332;  SicUiani, 
"Socialismo,  Darwinismo  e  sociologia  modema"  (Bologna,  1879);  Tcdlack,  "La 
recidive  d'habitude  en  Angleterre,"  in  the  B.  S.  G.  P.  (December,  1879);  id.,  "Peno- 
logical and  Preventive  Principles"  (London,  1889),  Cap.  V.  pp.  165  et  seq.;  Car- 
rau, " Etudes  sur  la  theoriede  revolution"  (Paris,  1879),  p.  192;  Garofalo,  "Criterio 
positivo  della  penalita"  (Naples,  1880),  p.  287;  FouillSe,  "La  science  sociale  con- 
temporaine" (Paris,  1880),  p.  287;  Espinas,  "La  philosophic  experimentale  en 
Italic"  (Paris,  1880),  p.  160;  Reinach,  "Les  recidivistes"  (Paris,  1881),  passim; 
Ten  Kate  and  Pavloski,  "Sur  quelques  crdnes  criminels,"  R.  A.  (1881),  fasc.  I; 
Soury,  "Le  crime  et  les  criminels,"  N.  R.  (February,  1882);  Oettingen,  "Ueber 
die  methodische  Erhebung  und  Beurteilung  kriminalstatistischer  Daten,"  Z.  G. 
S.  (1881),  p.  42;  Desportes,  "Rapport  sur  la  recidive,"  in  the  B.  S.  P.  (Paris, 
1884),  p.  123;  DuCane,  "Punishment  and  Prevention  of  Crime"  (London,  1884), 
p.  4;  Zuecarelli,  "I  delinquenti";  Acollas,  "Les  delits  et  les  peines"  (Paris,  1887), 
p.  10;  Beaussire,  "Les  principes  du  droit"  (Paris,  1888),  p.  148;  Joly,  "Le  crime," 
pp.  52,  73;  Binswanger,  "Verbrechen  imd  Wansinn,"  61st  Congress  of  German 
Naturalists  (Cologne,  September,  1888);  Krohne,  "Lehrbuch  der  Gefangnisskunde" 
(Stuttgart,  1880),  II,  Th.,  §  1;  Proal,  "Le  crime  et  la  peine"  (Paris.  1894),  p.  445; 
Olrik,  "  Ueber  die  Einteilung  der  Verbrecher,"  Z.  G.  S.  (1894),  XIV,  p.  76. 

^  Minzloff,  "fitude  sur  la  criminality,"  P.  P.  (September,  1880);  LeBon,  "La 
question  des  criminels,"  R.  P.  (1881),  p.  525.  Puglia,  "La  psico-fisiologia  e 
Tavvenire  della  scienza  criminale,"  A.  P.,  II,  p.  69;  "II  reato  d'  omicidio"  (Milan, 
1881),  id.,  p.,  39;  " Risorgimento  ed  avvenire  della  scienza  criminale"  (Palermo, 
1886),  p.  38.  Tamassia,  "Gli  ultimi  studi  sulla  criminalita,"  R.  S.  F.  (1881),  II 
part,  p.  198;  "Aspirazioni  della  medicina  legale  modema"  (Padua,  1883),  p.  25; 
Porto,  "La  scuola  criminale  positiva  eilprogetto  di  nuovo  codice"  (Padua,  1884) 
p.  8;  Lucas,  "A  locura  perante  a  lei  penal"  (Lisbon,  1887);  Liszt,  "Der  Zweck- 
gedanke  im  Strafrecht,"  Z.  G.  S.,  Ill,  1,  p.  36  (Berlin,  1883).  and  "Apergu  des 
applications  de  I'anthropologie  criminelle"  in  the  Actes  du  Congres  (Brussels 
1893),  p.  95;  "Die  psychologischen  Grundlagen  der  Kriminalpolitik,"  Z.  G.  S. 
(1896),  p.  477;  Medem,  "Das  Problem  der  Strafzumessung  im  Gerichtssaal" 
(1888),  n.  3-4;  Saleilles,  "The  Individualization  of  Punishment."  Little,  Brown 
&Co.  (Boston,  1911);  Fohring,  "Uno  sguardo  alle  instituzioni  di  Patronato  dei  li- 
berati  dal  carcere,"  in  the  "  Atti  del  congresso  internazional  di  beneficenza  a  Milano 


162  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  105 

tinguishes :  ^  (a)  the  incorrigible,  criminals  by  feeling  or  instinct, 
subdivided  into  two  groups:  criminals  by  hereditary  tendency  and 
criminals  through  the  habit  of  vice;  (b)  the  criminals  by  action 
who  are  such  through  occasion  or  possession;  (c)  the  criminals  of 
thought  who  are  the  criminal  insane.  Arboux  distinguishes  also  ^ 
evildoers  by  instinct  who  have  no  remorse  —  habitual  criminals  — 
occasional  criminals.  This  threefold  classification  is  repeated  by 
Starke  who  is  concerned  almost  exclusively  with  recidivity,  and  by 
Moreau,  Garraud,  and  Virgilio,'  Maudsley,  who  distinguished  ac- 
cidental, habitual  and  congenital  criminals  in  "The  Pathology  of 
the  Mind,"  has  recently  added  to  these  classes  that  of  the  criminal 

nel  1880"  (Milan,  1882),  p.  432;  Poletti,  "H  sentimento  nella  scienza  del  diritto 
penale"  (Udine,  1882),  pp.  52,  53;  Badik,  "Einteiliing  der  Verbrecher  in  vier 
Typen,"  in  the  "Archiv  fiir  Pathologie  anatomie  und  physiologie"  (August 
1884),  and  R.  C.  (1885),  p.  110;  Krauss,  "Die  Psychologie  des  Verbrechens"  (Tu- 
bingen, 1884),  pp.  227  et  seq.;  Benedikt,  A.  C.  A.  C.  (Rome,  1887),  p.  141;  "Des 
rapports  entre  la  folie  et  la  criminalite  "  (Vienna,  1885) ;  Pisa,  "  Benedikt  e  la  nuova 
scuola  di  diritto  penale,"  in  the  "  Monitore  dei  tribuni "  (Milan,  30  October,  1896) ; 
Bianchi,  A.  C.  A.  C.  (Rome,  1887),  p.  137;  Marro,  A.  C.  A.  C.  (Rome,  1887),  pp. 
12  and  136;  "I  caratteri  dei  delinquenti"  (Turin,  1887),  p.  434,  De  Bella.  "Pro- 
legomeni  di  filosofia  elementare"  (Turin,  1887),  p.  159;  "Anomalo  "  (Naples,  April, 
1889);  Topinard,  "  L'anthropologie  criminelle,"  R.  A.  (November,  1887),  p.  687; 
Joly,  "Le  crime,"  p.  52;  D' HanssontnUe,  "Rapport  dans  I'Enqu^te  parlementaire 
sur  les  etablissements  penitentiaires,"  VI,  141,  and  338;  Motet,  Testimony  in  the 
same  Enqufite,  I,  195;  Garofalo,  "La  criminologie,"  pp.  89,  90,  381  et  seq.;  Idem, 
A.  C.  A.  C.  (Rome,  1889),  p.  139;  "Rapport  au  congres  A.  C.  de  Paris,"  in  the 
A.  C.  A.  C.  (Lyons,  1894),  p.  73;  "Sur  la  classification  des  criminels,"  A.  C.  A.  C. 
de  Geneve  (1897),  p.  145;  Yvem^s,  "Comptes  gen^rales  de  la  justice  criminelle  de 
1838  k  1887"  (Paris,  1889),  Introd.;  Sergi,  "Le  degenerazioni  umane"  (Milan, 
1888),  p.  105;  Foinitzki,  "La  scienza  delle  pene  e  la  teoria  della  detenzione" 
(in  Russian,  St.  Petersburg,  1889),  and  bibliography  in  the  A.  A.  C.  (May, 
1889),  p.  334;  Pelman,  "  Zurechnungsfahigkeit  und  Criminalitat,"  Report  to  the 
Congress  of  Alienists  at  Weimar  in  "  Neurologisches  Centralblatt "  (October,  1891) ; 
Bonfigli,  "Storia  naturale  del  delitto"  (Milan,  1893),  p.  37;  Baviera,  "La 
riforma  positiva  delle  scienze  criminaU"  (Palermo,  1893),  p.  44;  Salillas,  "El 
delincuente  espanol"  (Madrid,  1896),  and  De  Quiros,  "Las  nuevas  teorias  de  la 
criminalidad"  (Madrid,  1898),  p.  94;  Pellizari,  "II  delitto  e  la  scienza  modema" 
(Tr^vise,  1896),  p.  339;  Severi,  "L'uomo  criminale,"  M.  M.  L.  (Milan,  1896),  2d 
ed.,  in,  p.  1611;  Riviire,  "Du  r6le  de  I'individualisation  dans  I'execution  des 
peines,"  in  the  "Rev.  p^nit."  (July,  1897),  p.  1045;  Ziino,  "Shakespeare  e  la 
scienza  modema"  (Messina,  1897),  p.  82;  Perrier,  "Les  criminels,"  A.  A.  C. 
(September,  1898),  p.  524. 

^  Lacassagne,  "  Marche  de  la  criminalitd,"  etc.  in  "  la  Rev.  scientif ."  (Paris, 
May  28,  1881),  p.  683. 

*  Arboux,  "Les  prisons  de  Paris"  (Paris  1881),  passim. 

*  Starke,  "Verbrechen  und  Verbrecher  in  Preussen,"  p.  219;  Moreau,  "Sou- 
venirs de  la  petite  et  grande  Roquette,"  II,  p.  439,  441;  and  for  thieves,  "Le 
monde  des  prisons,"  p.  1;  Garraud,  "Droit  p^nal  et  sociologie  criminelle,"  A.  A. 
C.  (1886),  p.  17;  Virgilio,  "Passanante  e  la  natura  morbosa  del  delitto,"  pp.  41, 
45. 


§  106]    NATURAL  CLASSIFICATION  OF  CRIMINALS         163 

insane,  so  that  his  classification  is  about  the  same  as  mine  with  the 
sole  difference  that  I  have  classified  criminals  through  passion  separ- 
ately as  a  distinct  variety  of  accidental  criminals.^  Corre  also  gives 
a  classification  which  corresponds  to  the  one  that  I  have  proposed. 
He  distinguishes  insane  criminals  (whom  he  calls  pseudo-crim- 
inals), accidental  criminals,  and  criminals  by  status  or  profession, 
among  whom  he  includes  born  and  habitual  criminals;  and  adds 
a  category  of  latent  criminals  or  of  pseudo-honest  folk.^ 

§  106.   Colajanni  and  Lombroso  Accept  the  Five  Classes  of  Delinquents. 

After  arguing  against  all  of  the  data  of  criminal  anthropology 
Colajanni  finally  accepts,  as  I  said  he  would,  the  classification 
that  I  have  proposed  and  only  adds  to  it  the  category  of  political 
criminals,  which  is  without  logical  or  experimental  consistency.' 
If  in  obedience  to  political  considerations  which  should  never 
appear  in  science,  he  insists  on  having  us  know  that  political 
criminals,  at  least  those  who  are  really  honest  and  normal  men 
misguided  by  their  political  ideals,  should  not  be  confused  with  or- 
dinary criminals,  then  there  is  a  logical  contradiction  in  making 
them  a  class  of  "criminals,"  since  from  our  standpoint  they  are 
not  criminals  but  pseudo-criminals.  If  he  pretends  to  put  in  this 
category  all  who  commit  offenses  of  a  political  character,  he  is 
not  in  harmony  with  experience,  since  political  deHcts  may  be 
committed  and  are  committed  every  day,  not  only  by  men  really 
misled  by  political  passion  (pseudo-criminal),  but  also  by  insane, 
born,  occasional,  and  habitual  criminals,  who,  either  by  social 
contagion  or  through  personal  circumstances,  give  their  criminal 
tendencies  the  form  of  political  crime.  In  our  opinion,  therefore, 
political  criminals  either  are  not  criminals  at  all  or  else  belong  to 
one  of  the  five  categories  of  the  general  classification.*    Lombroso 

1  Maudsley,  "The  Pathology  of  the  Mind"  (London,  1878);  "Remarks  on 
Crime  and  Criminals,"  J.  M.  S.  (July,  1888),  and  R.  C.  (1888),  p.  81. 

*  Corre,  "Les  criminels,"  pp.  329  et  seq. 

'  Colojanni,  "Sociologia  criminale,"  I,  352  et  seq.;  Sernicoli  also,  "L'anarchia 
e  gli  anarchici"  (Milan,  1889),  has  made  pretense  of  fixing  a  type  of  political 
criminal  "an  intermediate  state  between  sanity  and  madness."  But  he  has 
been  refuted  by  Laschi.  S.  P.  (30  September,  1894),  p.  894. 

*  See  Laschi  and  Lombroso,  "Du  d^lit  politique,"  A.  A.  C.  (Rome,  1887),  pp. 
37  and  379;  "II  delitto  politico"  (Turin,  1890),  p.  1,  Cap.  VIII  and  XI;  Regis, 
"Les  regicides"  (Lyon,  1890);  Hamon,  "Les  hommes  et  les  theories  de  I'anarchie" 
(Paris,  1893);  "La  psychologic  de  I'anarchiste-socialiste"  (Paris,  1895);  GU 
Maestre,  "Socialismo  y  anarquismo  en  relacion  con  la  criminalidad,"  in  the  "Re- 
vista  generala  de  legislatione  y  jurisprudenzia"  (December,  1894  and  January, 
1895);   Dallemage,  "Anarchic  et  responsabilite"  (Brussels,  1895),  and  Van  Hamel, 


164        DATA  OF  CRIMINAL  ANTHROPOLOGY    [§§  107,  108 

in  the  second  volume  of  "Uomo  delinquente"  also  follows  my 
classification.  After  speaking  in  his  first  volume  of  the  born- 
criminal  (identified  with  the  morally  insane  and  the  epileptic 
criminal),  he  gives  in  his  second  volume  a  masterful  anthropo- 
logical description  of  the  criminal  through  rage  or  through  pas- 
sion, of  the  insane  criminal  (with  the  alcoholic,  hysterical,  mattoid 
varieties)  —  and  of  the  occasional  criminal  (with  the  varieties 
of  pseudo-criminals,  criminaloids,  criminals  by  habit,  latent 
criminals,  and  epileptoids).^ 

§  107.  New  Basis  for  Legal  Science. 

A  few  conclusions  of  fact  appear  upon  a  comparative  review 
of  the  different  classifications.  The  necessity  for  abandoning  the 
single  and  abstract  criminal  type,  as  well  as  the  necessity  of  sub- 
stituting a  classification  which  responds  better  to  the  variety  of 
natural  facts,  is  generally  recognized.  This  classification,  first 
begun  from  the  viewpoint  of  the  prisons,  was  extended  by  me 
(completed  in  1880)  to  the  proper  and  real  field  of  crimuial  sociol- 
ogy where  it  has  since  enjoyed  full  rights  of  citizenship  and  where 
it  has  exerted  the  inexorable  influence  of  a  positive  fact.  While 
some  criminologists,  who  recognize  its  truth,  willingly  assent  to 
this  division  into  several  categories  as  useful  in  penal  adminis- 
tration, we  maintain  on  the  contrary  ^  that  this  distinction  be 
recognized  as  one  of  the  supreme  norms  of  legal  science,  and  that 
social  defense  should  be  regulated  in  matters  of  quahty  and 
degree  according  to  it.  In  other  words,  social  defense  should  be 
based  on  the  fundamental  data  of  criminal  sociology. 

§  108.  Five  Classes  a  Natural  Division. 

Among  the  different  classifications  proposed  there  are  no  es- 
sential differences.  This  fact,  while  confirming  the  excellence  of 
the  experimental  method  which  insists  above  all  on  the  study  of 

"L'anarchisme,"  A.  C.  A.  C.  (Geneva,  1897),  pp.  Ill  and  253;  Lombroso,  "Gli 
anarchici,"  2d  ed.  (Turin,  1895);  Semicoli,  "  L'anarchia  e  gli  anarchici";  Laschi, 
"L'anarchia,  gli  anarchici  e  la  Scuola  positiva,"  S.  P.  (30  September,  1894);  Proal, 
"La  criminalite  politique"  (Paris,  1895);  VerUuri,  "Regicidi  e  anarchici"  (Ca- 
tanzaro,  1895);  Ferrero,  "Gli  ultimi  attentat!  anarchici  e  la  loro  repressione,"  in 
the  "Riforma  sociale,"  I,  p,  11  (1895);  Kennan,  "Les  prisonniers  politiques  en 
Russie"  (Geneva,  1896);  De  Veyga,  "Anarquismo  y  anarquistas,  Estudio  de  an- 
thropologia  criminal,"  in  the  "Anale  del  departmento  nazionale  de  higiene"  (Bue- 
nos-Ayres,  September,  1897);   SemicoUi,  "1  delinquenti  anarchici"  (Rome,  1899). 

^  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  vol.  I  and  II. 

*  See  Chap.  Ill,  -post,  and  the  positive  theory  of  imputability  there  outlined. 


§  108]   NATURAL  CLASSIFICATION  OF  CRIMINALS         165 

facts  and  forbids  the  theoretical  opposition  of  principles  usual  in 
"a  priori"  systems,  shows  that  the  substance  of  the  observations 
made  and  the  inductions  drawn  actually  correspond  to  natural 
reaUty.  There  is  in  fact  unanimity  on  the  primitive  and  funda- 
mental separation  of  occasional  criminals  from  those  by  instinc- 
tive tendency,  of  those  who  are  capable  of  betterment  from  those 
who  are  incorrigible.  There  is  unanimity  also  for  the  subdivision 
of  each  of  these  great  categories  into  two  varieties,  thus  obtain- 
ing the  four  classes:  occasional  criminals,  criminals  by  passion, 
born-criminals,  and  criminals  by  mental  alienation.  There  will 
remain  the  further  category  not  conceded  by  all,  —  the  interme- 
diate category  which  includes  those  whom  I  have  called  criminals 
by  acquired  habit.  Aside  from  the  unimportant  differences  of 
nomenclature,  the  partial  disagreement  Ln  classification  has  its 
source  in  the  difference  in  the  distinguishing  criteria  adopted. 
The  classification  of  Lacassagne,  Krauss,  Joby,  Badik,  Marro, 
and  Pelman,  at  least  in  their  primary  denominations,  show  simply 
a  descriptive  criterion,  centered  on  the  manifestations  of  crime 
in  the  three  principal  branches  of  human  life,  —  sentiment,  idea, 
and  act,  and  only  take  into  account  the  marks  of  the  descriptive 
and  not  the  genetic  psychology  of  the  criminal;  or  consult  only 
his  organic  marks.  The  same  may  be  said  of  the  classifications 
of  Liszt,  Medem  and  Minzloff  which  are  determined  by  a  cura- 
tive or  defensive  criterion  such  as  the  efficacy  of  punishment;  of 
the  classification  of  Fohring  with  its  special  point  of  view  of  pat- 
ronage; and  finally,  of  the  classification  of  Starke  based  on  the 
symptomatic  criterion  of  a  single  mark  which  is  in  truth  distinc- 
tive but  too  special,  namely,  that  of  recidivity.  The  criterion  which 
I  adopted  in  making  my  classification  is  genetic  and  casual,  that 
is,  it  pertains  to  individual  physical  and  social  causes  from  which 
the  different  manifestations  of  criminal  activity  are  derived.  As 
such,  it  seemed  to  me  to  respond  better  to  the  theoretical  exigen- 
cies and  practical  needs  of  criminal  sociology.  In  fact,  the  major- 
ity of  the  other  classifications  inspired  by  this  very  criterion  (those 
by  Puglia,  Benedikt,  Prins,  Maudsley,  Carre,  Garofalo,  Bonfigli, 
Severi,  and  Lombroso)  either  reproduce  my  classification  in  its 
basic  distinctions  or  can  be  reduced  to  it  and  hence  correspond  to 
it.  My  classification  receives  overpowering  confirmation  from  the 
fact  that  it  can  include  every  other  classification.  It  is  evident 
that  it  faithfully  represents  the  constant  and  common  fund  of  all 
the  principal  anthropological  categories  of  criminals  both  in  re- 


166  DATA  OF  CRIMINAL  ANTHROPOLOGY         [§  108 

spect  to  their  natural  origin  and  distinctive  marks  and  the  different 
methods  of  social  defense  derived  from  it.^  I  will  make  one  obser- 
vation of  fact,  so  to  speak,  and  one  of  law  for  those  who  subscribe 
to  a  different  classification.  The  fact:  the  reason  that  PugUa,  for 
example,  did  not  accept  a  separate  category  for  criminals  by  ac- 
quired habit,  is  that  he  gave  his  attention  only  to  attempts  against 
the  person,  especially  to  homicide,  and  we  cannot  accept,  at  least 
in  an  absolute  way,  a  class  of  homicides  by  acquired  habit  in  the 
sense  that  they  have  become  such  principally  through  the  co- 
operation of  external  surroundings.  Our  classification  has  the 
mark  of  generality  valuable  for  all  criminal  forms  and  must  nat- 
urally vary  in  adapting  itself  to  a  given  class  of  crimes  taken  sep- 
arately. The  same  may  be  said  to  those  who  do  not  accept  the 
class  of  criminal  insane  because  they  consider  that  these  belong  to 
psychiatry  and  not  to  criminal  anthropology.  The  observation 
of  law  is  this :  the  true  positivist  should  not  improvise  classifica- 
tions in  his  study,  but  should  deduce  them  from  the  direct  study 
of  natural  facts;  in  our  case  from  the  study  of  criminals.  Now  I 
dispute  the  right  of  mere  formal  logic  to  declare  a  class  of  phenom- 
ena non-existent  unless  its  decision  is  supported  by  a  mass  of  posi- 
tive observations.  Each  category  of  criminals  pictures  a  reality 
of  fact  observed  in  the  prisons.  To  weaken  its  existence  it  must 
be  opposed  by  other  facts,  other  anthropological  observations 
capable  of  correcting  and  completing  the  previous  observations 
and  facts.  In  reality  (and  this  is  the  most  popular  criticism  of 
the  opponents  of  criminal  anthropology)  it  is  as  easy  as  it  is  futile 
to  say  that  such  a  type  or  such  a  fact  does  not  exist.  It  is  easy  to 
deny.  Proof  by  experience  is  more  difficult  but  more  positive, 
hence,  all  the  syllogistic  objections  offered  to  criminal  anthro- 
pology have  not  prevented  its  development  and  progress.  In 
conclusion,  let  us  bear  in  mind  that  as  a  general  rule  it  is  better 
to  abound  in  distinctions  rather  than  to  confound  facts  with  differ- 
ent determining  causes  in  a  single  series.  To  give  another  illus- 
tration, it  has  been  recognized  in  biological  research  that  the 

1  The  bio-social  classification  of  criminals  proposed  by  me  is  now  accepted  and 
followed  almost  imanimously  by  anthropologists  and  criminal  sociologists,  as  may 
be  seen  among  the  more  recent:  Kurella,  " Naturgeschichte  des  Verbrechers," 
p.  262;  Viv  eiros  di  Castro,  "A  nova  escola  penal"  (Rio  de  Janeiro,  1894),  p.  127; 
Paolucci,  "Basi  nove  del  diritto  di  punire"  (Frosinone,  1896),  p.  145;  Bonanno, 
"II  delinquente  per  passione";  Motta,  "  Classificagao  dos  criminosos"  (S.  Paulo, 
1897),  p.  18;  OUolenghi  and  Rossi,  "Duecento  criminali,"  pp.  212-213;  Angiolelia 
"Manuale  di  antropologia  criminale,"  p.  273;  AUongi,  "Manuale  di  polizia  scien- 
tifica"  (Milan,  1899).  p.  260. 


§  108]    NATURAL  CLASSIFICATION  OF  CRIMINALS         167 

method  of  restricted  series  is  much  superior  to  that  of  broad  series. 
If  social  therapy,  Uke  individual  therapy,  seeks  the  indication  of 
remedies  from  a  minute  and  complete  knowledge  of  causes,  it  is 
evident  that  by  distinguishing  a  sub-class  in  the  great  category  of 
incorrigible  or  occasional  criminals,  we  aid  the  study  of  remedies 
which  may  be  apphcable  to  these  morbid  manifestations  of 
social  life.  Of  this,  we  shall  become  even  more  convinced  in  con- 
sidering the  social  causes  of  criminality  with  the  aid  of  statistics. 


PART    II 
DATA   OF   CRIMINAL   STATISTICS 

CHAPTER  I 

METHODS   OF   COLLECTING   CRIMINAL   STATISTICS  i 

Moral  and  criminal  statistics.     History  and  statistics.     Natural  and  l^al 

criminality. 

§  109.  Importance  of  Criminal  Statistics. 

In  social  phenomena,  experiment,  easy  in  physical  and  biolog- 
ical phenomena,  is  diflBcult  and  often  impossible,  and  observation 
is  the  most  suitable  means  of  scientific  research.  Statistics  are 
among  the  most  useful  methods  of  observation.  Hence,  it  is 
natural  that  the  criminal  sociologist,  after  his  study  of  the  indi\ad- 
ual  in  the  natural  genesis  of  crime,  should  have  recourse  to  crim- 
inal statistics.  This,  says  Krohne,  is  the  first  condition  of  success 
in  the  battle  with  the  forces  of  crime  and  answers  the  same  func- 
tion as  reconnoitering  in  war.^  For,  if,  as  Quetelet  said,  statistics 
are  the  "nosce  te  ipsum"  apphed  to  society,  or  if  speaking  less 
accurately  with  Fere,^  statistics  are  "the  conscience  of  the  social 
organism,"  they  are  the  source  of  the  modem  conception  of  the 
intimate  connection  of  crime,  in  a  part  of  its  genesis  and  in  its 
special  forms,  with  the  conditions  of  social  life.  Criminal  statis- 
tics are  for  criminal  sociology  what  histology  is  for  biology.  They 
show,  in  the  individual  elements  which  compose  the  collective 
organism,  the  basic  reasons  of  crime  viewed  as  a  social  phenome- 
non not  only  in  the  field  of  scientific  research  and  induction,  but 
also  in  that  of  practical  legislative  application.  Lord  Brougham 
at  the  statistical  Congress  at  London,  in  1860,  said,  "Criminal 
statistics  are  to  the  legislator  what  charts,  the  compass,  and  the 

^  For  the  historj-  of  these  researches,  see:  Oettingen,  " Geschichtliche  Entwicke- 
lung  der  Moralstatistick,"  pp.  20  et  seq.,  of  his  " Moralstatistick " ;  Fuld,  "Die 
Entwickelung  der  Moralstatistick"  (Berlin,  1884). 

'  Krohne,  "Der  gegenwartige  Stande  der  Gefangnisswissenschaft,"  Z.  G.  S. 
(1881),  I.  75. 

*  Fir 6,  "D^^ndrescence  et  criminality"  (Paris,  Alcan.  1888),  p.  123. 

168 


§  110]  COLLECTING  CRIMINAL  STATISTICS  169 

lead  are  to  the  navigator."  ^  This  they  are  or  this  they  should 
be,  and  yet  in  compiling  the  new  Italian  Penal  Code,  the  preced- 
ing ItaHan  codes  (the  Tuscan,  for  example)  and  the  more  modern 
foreign  codes  were  copied  and  retouched  in  a  more  or  less  happy 
fashion,  but  the  legislators,  although  wavering  between  ancient 
and  modern  ideas,  made  not  the  slightest  pretense  of  considering 
the  most  obvious  results  of  criminal  statistics  in  our  country.^ 

§  110.  Method  of  Collecting  and  Studying  Criminal  Statistics. 

In  the  case  of  statistical  data  as  in  the  case  of  criminal  anthro- 
pology, it  is  well  to  present  some  preliminary  observations  on  the 
study  of  such  data,  before  drawing  lines  and  general  conclusions. 
As  to  the  method  and  technical  procedure  of  abstracting  and 
weighing  the  data  of  criminal  statistics,  Oettingen  has  given  some 
ideas  which  deserve  to  be  recorded,  since  this  subject  has  never  been 
developed,  either  before  or  after  him,  except  from  a  more  strictly 
technical  viewpoint,  which  less  concerns  us.  The  author  of 
"Moralstatistick"  begins  with  the  declaration:  "The  abstracts  of 
criminal  statistics,  thus  far  attempted,  have  been  made  at  hazard, 
so  that  a  student  who  wishes  to  make  a  special  research  is  discour- 
aged by  finding  no  definite  point  of  departure.  The  tendency  to 
deduce  from  criminal  statistics  conclusions  of  public  morality,  and 
particularly  of  the  corruption  of  national  morals,  is  more  general 
than  one  would  believe;  but  it  is  not  scientifically  accurate  because 
the  mere  figures  of  delinquency  do  not  give  exactly  the  direct  meas- 
ure of  the  immorality  of  a  people  although  they  always  furnish 
an  important  symptom  of  the  morbid  state  of  society.  ...  It  is 
also  evident  that  in  the  social  and  moral  comparison  of  different 
nations  the  figures  cannot  be  employed  without  correction.  It  is 
not  solely  a  question  of  penal  legislation.  That  differs  in  the 
various  countries  and  changes  even  in  the  same  State  so  that  even 

*  Romagnosi,  "Osservazioni  statistiche  sul  resoconto  della  giustizia  criminale 
in  Francia  pel  1827,"  in  the  "Annali  Universali  di  statistica"  (1829),  XIX,  I; 
Bentham,  "  Principles  of  Legislation,  I,  cap.  9-10;  Abegg,  "  Bedeutung  der  Criminal- 
statistick  fiir  die  Wissenschaft,  Anwendung  und  Gesetzgebimg  im  Gebiete  des 
Strafrechts,"  in  the  " Zeitschrift  des  Koniglichen  Preuss.  Statistik  Bureaus"  (1866), 
p.  115;  Fuld,  "Einfluss  der  Kriminalstatistick  auf  Strafgesetzgebung,"  etc.  in  the 
"Archiv  fiir  Strafrecht"  (1885),  p.  220;  Mischler,  "Die  Criminalstatistick  als 
Erkenntnissquelle,"  in  the  "Handbuch  des  Gefangnisswesens  of  Holtzendorff" 
(Hamburg,  1888),  I,  56. 

*  Ferri,  "Discorsi  parlamentari  sul  nuovo  codice  penale"  (Naples,  1889),  pp. 
30  et  seq.,  and  "Intomo  al  nuovo  codice  penale,"  in  the  "Difese  penali  e  studi  di 
giurisprudenza. ' ' 


170  DATA  OF  CRIMINAL  STATISTICS  [§110 

in  the  same  country  the  figures  of  crime  cannot  be  compared  with 
those  of  the  other  legislative  periods.  This  is  particularly  true 
of  France,  of  which  country  the  criminal  statistics  covering  more 
than  a  half-century  have  recently  (1880-1881)  been  voluminously 
treated  by  Enrico  Ferri.  Yet  it  seems  to  me  that  Ferri  himself 
falls  into  the  error  of  drawing  too  precipitate  conclusions  from 
figures  and  of  finding  in  them  (whatever  account  he  may  take  of 
legislative  periods)  a  criterion  of  the  increase  or  decrease  of  crim- 
inal tendencies  in  the  life  of  the  people  and  in  the  whole  social 
body.  In  my  opinion,  the  absolute  number  of  crimes  detected 
and  judged  is  not  at  all  decisive.  The  increase  in  the  num- 
ber of  crimes  brought  to  trial  may,  indeed,  if  due  to  the  increase 
in  the  repressive  force  of  justice  and  pohce,  be  a  happy  and  favor- 
able symptom.  Ferri  himself  concedes  that  the  fluctuations  of 
annual  criminality,  and  especially  the  increases  indicated  after 
1832,  1848,  and  1872,  were  largely  due  to  the  rigor  of  the  laws 
and  the  vigilance  of  the  police.  Hence  it  seems  to  me  that  he 
should  protest  more  energetically  than  he  does  against  the 
conclusions  that  the  given  degrees  and  curves  of  criminality 
express  effective  opposition  to  law,  or  show  the  '  inclination  towards 
crime,'  —  an  idea  which  is  found  in  the  studies  of  Guerry  on 
France  and  England.  It  is  true  that  Ferri  distinguishes  between 
real,  apparent,  and  legal  criminality.  To  the  last  (statutory 
crime),  which  is  represented  in  the  figures  of  causes  tried,  too 
much  weight  is  given;  we  see  in  it  the  criterion  of  the  increase  or 
decrease  of  public  morahty  and  the  proof  of  a  certain  'crimi- 
nal saturation'  produced  in  accordance  with  a  determined  law, 
superinduced  by  social  factors  in  the  spirit  of  the  people  toward  it. 
"Neither  the  ethical  nor  the  naturalistic  conclusion  seems  jus- 
tifiable to  my  mind.  At  least  in  this  aspect  the  absolute  figures 
are  not  decisive.  Wherefore,  it  is  necessary,  as  Ferri  himself  has 
shown,  to  use  other  experiments  in  order  to  arrive  at  really  certain 
results.  The  extension  and  intensity  of  crime  (the  one,  resulting 
from  the  number  of  crimes  brought  to  trial,  the  other,  from  its 
relation  to  population)  have  positively  no  decisive  importance  if 
used  as  an  ethico-social  barometer  for  lawless  activity.  Aside 
from  external  causes  which  may  determine  the  increase  or  de- 
crease of  the  number  of  crimes  (peace  or  war,  cost  of  living,  pov- 
erty, epidemics  and  other  calamities),  the  absolute  number  of 
crimes  actually  punished  is  certainly  not  so  annoying  a  symptom 
as  the  number  of  transgressions  for  which  justice  exacts  no  expia- 


§  111]  COLLECTING  CRIMINAL  STATISTICS  171 

tion.     Thus  the  relatively  higher  figures  of  delinquency  may  be 
a  relatively  favorable  symptom." 

I  might  make  many  observations  but  I  shall  remark  only  that 
in  statistics  there  may  be  not  only  too  much  caution  but  also 
too  much  carelessness,  and  that  both  are  harmful.  Nor  shall  I 
repeat  what  I  have  said  on  the  method  to  be  pursued  in  the  study 
of  criminal  anthropology.  I  shall  content  myself  now  with  the 
remark  that  the  task  of  biological  and  statistical  observations, 
confused  by  Oettingen,  are  not  the  same;  and  that  the  statistics 
of  impersonal  numbers  are  not  greater  in  importance  and  result 
than  personal  observation,  which  gathers  facts  by  the  study  of  a 
mass  of  individuals,  with  the  same  method  and  the  same  instru- 
ments. As  Cheysson  says,  contrary  to  statistics  and  its  summary 
totals,  "monographic  labors  seize  upon  a  typical  fact  and  pene- 
trate it  to  the  bone."  Nor  shall  I  recall  that  a  great  many  of  the 
propositions  of  Oettingen  relative  to  statistics  had  already  been 
applied  by  me  in  "Studi  sulla  criminalita  in  Francia"  and  in  "De- 
litto  in  rapporto  alia  temperatura."  For  example,  the  necessity 
of  taking  the  legislative  changes  and  the  number  of  police  agents 
into  account;  the  necessity  of  studying  not  only  the  more  serious 
crimes  but  also  the  lesser  offenses;  the  classification  of  the  three 
groups  (anthropological,  telluric,  and  social)  of  the  causes  of 
crime,  a  classification  used  by  many  writers  on  criminal  statistics; 
finally  the  proportion  of  acquittals  and  the  various  kinds  of  pun- 
ishment —  a  question  to  which  I  gave  my  attention  in  a  degree 
too  rarely  found  lu  the  preceding  labors  in  criminal  statistics.^ 
Putting  aside  these  personal  observations,  I  will  touch  only  upon 
those  which  have  a  general  importance  in  the  use  of  statistics  in 
studying  criminal  sociology. 

§  111.  Use  and  Abuse  of  Statistics. 

Beginning  with  consideration  of  the  very  limited  confidence 
which  Oettingen  and  many  others  accord  to  abstracts  of  statistics 
(without  remarking  that  they  always  come  back  to  statistics 
because  they  have  no  alternative),  I  admit,  that  if  they  wish  to 

^  The  two  preliminary  studies  which  I  began  in  my  "Studies  on  Criminality 
in  France"  are:  I.  "On  the  value  of  statistical  data  as  a  faithful  representation  of 
actuality  (real,  apparent  and  statutory  criminality). —  II.  "  On  the  manner  of  com- 
parison between  different  periods,  regard  being  had  to  legislative  changes."  (Rome, 
in  the  "Annali  di  Statistica"  1881.)  And  "Das  Verbrechen  in  seiner  Abhangigkeit 
von  dem  jahrlichen  Temperaturwechsel,"  Z.  G.  S.  (1882);  "Variations  thermo- 
m6triques  et  criminalite,"  A.  A.  C.  (1883). 


172  DATA  OF  CRIMINAL  STATISTICS  [§111 

emphasize  the  imperfection  of  statistical  data  in  order  not  to 
lose  sight  of  the  fact  that  such  data  give  only  a  certain  degree  of 
probabihty  and  not  absolute  certitude  nor  photographic  accuracy, 
then  we  are  in  perfect  accord  with  them.  But  if  they  recognize 
no  value  in  statistical  observations,  I  cannot  accept  their  verdict. 
Otherwise,  by  mere  force  of  argumentation,  such  very  curious 
conclusions  could  be  reached,  as,  for  example,  the  following: 
"What  crime  are  you  making  notes  of?  In  the  accusation  there 
is  only  suspicion;  in  the  prehminary  investigation,  only  an  in- 
complete notion;  in  the  trial,  only  the  unknown  quantity  of  a 
problem;  in  the  verdict,  only  a  theme  of  debate;  in  the  sentence 
only  the  opinion  of  a  judge.  Thus,  statistics,  based  upon  elemen- 
tary data  always  denied,  uncertain,  and  changing  are  like  a  lever 
wanting  an  uM  consistere."  ^  The  significance  of  this  is,  that  by 
reason  of  exaggeration  in  discussing  the  imperfections  of  statistics 
and  all  the  other  means  of  scientific  research,  one  comes,  thanks  to 
the  "suspicions"  at  the  time  of  arrest,  the  "unknown  quantity" 
of  the  trial,  and  the  "debate"  of  the  verdict,  to  a  disregard  and 
elimination  of  two  or  three  thousand  murders  which,  good  year 
or  bad,  are  annually  committed  in  Italy.  Certainly  the  same  is 
true  of  statistics  as  of  anything  else:  a  rational  use  of  them  may 
be  made  or  they  may  be  abused  by  empiricism  or  by  reliance  upon 
an  "a  priori"  theory.  But,  aside  from  all  futile  discussion,  we 
should  oppose  statistics  with  a  distrust,  even  excessive,  —  with 
a  scepticism,  even  exaggerated,  when  a  fact  is  brought  to  our 
attention  in  their  name  which  savors  of  the  miraculous  or  which 
is  not  explicable  without  them  by  the  recognized  general  laws  of 
psychology  and  sociology.  When  statistical  figures  present  a 
fact,  however  unexpected,  which  the  statistician  shows  in  a  nat- 
ural and  constant  relation  with  some  law  antecedently  admitted 
and  verified,  then  it  is  perfectly  right  to  say  that  the  presumption 
of  truth  is  in  its  favor;  that,  in  any  event,  if  the  unpleasant  facts, 
which  have  been  brought  to  light,  are  to  be  disputed,  they  must 
be  contested  not  with  syllogisms  alone,  but  by  other  facts  which 
destroy  and  contradict  them  and  which  in  turn  are  supported 
by  other  laws  not  less  general  and  positive.  Such  is  the  reply 
which  may  be  made,  for  example,  to  those  who  by  an  obvious 
contradiction  and  incomplete  use  of  statistics,  assent  that  alcohol 
is  not  a  factor  in  crime,  since  the  States  and  provinces  which  con- 
sume the  most  do  not  record  the  greatest  number  of  homicides 
^  Salpace  (Pascal),  "Uso  e  abuso  della  statistica"  (Roma,  1885),  p.  31. 


§  112]  COLLECTING  CRIMINAL  STATISTICS  173 

and  other  offenses.^  It  would  really  be  a  miracle  if  a  cause  unde- 
niably pathological  with  individuals  ceased  to  be  the  same  with 
the  mass  of  these  same  individuals.  The  truth  is,  that  alcohoUsm, 
not  being  the  sole  factor  in  crime,  may,  in  the  diflFerent  countries, 
be  neutralized  by  other  predominant  factors,  such  as  race,  or  social 
environment. 

§  112.   Ethico-social  Inductions  from  Criminal  Statistics. 

On  my  part,  I  must  make  a  serious  objection  to  the  projects 
of  "ethico-social"  judgments  which  Oettingen  has  seen  fit,  with 
some  precaution,  to  institute  on  the  data  of  criminal  statistics. 
That  is  to  say,  he,  with  many  others,  talks  of  moral  statistics, 
while  I  think  that  simply  criminal  statistics  should  be  taken.  Oet- 
tingen is  doubtless  right  as  against  those  who,  like  Legoyt,  Haus- 
ner,  and  more  recently  Levi,^  think  that  they  can  construct  a  scale 
of  comparative  national  morality  from  criminal  statistics;  but  in 
my  opinion  he  falls  into  a  similar  error,  when,  as  we  have  so  often 
seen,  he  speaks  of  the  ethico-social  significance  of  the  data  of 
criminal  statisics.  That  is  why  I  have  never  drawn  any  ethico- 
social  inductions  from  comparative  criminal  statistics.  Never, 
even  in  the  case  of  a  single  country,  have  I  spoken  of  "the  crim- 
inal tendency  in  the  life  of  the  people."  Criminal  statistics  tell 
us  this  and  nothing  more:  —  In  such  a  year  there  was  more  or  less 
crime  than  in  other  years.  Now,  on  the  one  hand,  I  affirm  that 
these  simple  data  cannot  justify  any  ethico-social  judgment  even 
when  it  reaches  the  highest  degree  of  precision,  representing 
crimes  actually  committed  and  not  merely  those  which  have  been 
discovered  and  tried,  because  the  morality  of  a  people  embraces 
too  many  elements  that  this  data  does  not  include.  Let  us  even 
admit,  with  Mayr,  that  criminal  statistics  are  but  part  of  moral 
statistics  which  should  also  make  its  induction  from  the  demo- 
graphic figures  of  marriages,  divorces,  births  both  legitimate  and 

^  Tammeo,  "I  delitti,  saggio  di  statistica  morale,"  R.  C.  (1881-1882),  p.  56; 
Fournier  de  Plain,  "L'alcool  et  I'alcoolisme,"  R.  S.  (14  August,  1889).  And  in  a 
more  absolute  way,  Colajanni,  "L'alcoolisme"  (Catane,  1888),  although  he  cites 
neither  Tammeo  nor  Fournier,  who,  less  absolutely  than  himself,  had  maintained 
the  same  thesis. 

^  Levi,  "The  Progress  of  Morals  in  England,"  cited  by  Bosco,  "Gli  omicidi  in 
alcuni  stati  d'Europa"  B.  I.  I.  S.  (Rome,  1889).  See  also,  Inama  Sternberg, 
"Zur  Kritik  der  Moralstatistik,"  in  the  "Jahrbuchfiir  Nationalok.  imd  Statistik" 
(1883),  p.  505;  Falkner,  "Crime  and  Census,"  in  the  "Annals  of  American  Acad- 
emy of  Political  Science"  (January,  1897),  and  in  the  "Zeitschrift  fUr  Criminal- 
anthropologie"  (1897),  fasc.  3. 


174  DATA  OF  CRIMINAL  STATISTICS        [§§  113,  114 

illegitimate,  the  number  of  suicides,  and  education.  Yet  the  loy- 
alty of  the  people,  their  honesty  in  civil  and  commercial  relations, 
the  family  relationship,  the  degree  of  moral  and  civic  education, 
pubUc  charity,  the  manner  in  which,  aside  from  pubUc  charity, 
the  disinherited  classes  are  treated,  —  what  have  all  these  in 
common  with  criminality?  And  yet  they  are  so  many  important 
factors  in  the  moral  life  of  a  people.  The  truth  is,  as  Ortolan  and 
MessedagUa  have  observed,  that  "the  statistical  study  of  moral 
conditions  can  only  be  made  by  means  of  exterior  indices,  and  these 
indices  are  for  the  most  part  drawn  from  facts  indicative  of  dis- 
order. Order  is  less  readily  discerned  and  felt  because  it  ought 
to  be  the  rule.  One  perceives  the  beatings  of  the  heart  only  when 
they  have  become  irregular.  It  is  death  which  measures  life.  In 
like  manner  morahty  is  defined  and  measured  by  immoraUty; 
respect  for  law,  by  the  infractions  which  violate  it  and  by  crime."  ^ 

§  113.  Criminal  Sociological  Demands  of  Statistics. 

But  on  the  other  hand,  the  elementary  data  of  criminal  statis- 
tics suffices  for  the  purpose  and  needs  of  criminal  sociology.  In 
reality,  it  more  or  less  notes  the  annual  and  periodical  movement 
of  crime,  whether  apparent  (discovered  and  denounced)  or  legal 
(brought  to  trial)  ,^  and  from  this  data  criminal  sociology  attains 
to  a  study  of  the  most  general  and  evident  causes.  But  it  does  not 
attempt,  I  repeat,  to  judge  so  complex,  fluctuating,  and  diverse 
an  entirety  as  that  of  a  people's  morality,  by  a  single  unilateral 
and  negative  element. 

§  114.  Biological  Aspect  of  Criminal  Statistics. 

This  is  the  sociological  aspect  of  criminal  statistics  to  which  the 
biological  should  be  joined,  since  statistics  must  be  consulted  as 
to  the  variable  and  proportional  participation  of  different  ages, 
sexes,  and  professions  in  criminal  life.  But,  although  the  individ- 
ual or  biological  side  of  crimiaal  statistics  has  been  actively  cul- 
tivated, the  social  side  has  been  neglected.  Yet  it  is  principally 
from  this  that  the  sociologist  and  legislator  can  and  must  seek 
indications  for  social  pathology  and  therapy.  When  we  under- 
stand the  part  played  in  crime  by  the  different  ages,  sexes,  profes- 

*  Ortolan,  "filaments  du  droit  penal,"  I,  646;  Messedaglia,  "Le  statistiche 
criminale  dell'  impero  Austriaco"  (Venice,  1867),  p.  8. 

*  I  have  shown  by  minute  calculations  in  my  "Studi  sulla  criminality  in  Fran- 
cia,"  that  they  are  in  approximate  relations  of  equivalence  with  each  other. 


§  115]  COLLECTING  CRIMINAL  STATISTICS  175 

sions;  by  the  civil  status  and  education,  we  find  ourselves  face  to 
face  with  effects  deeply  rooted,  not  only  in  social,  but  also  in  the 
organic  and  psychic  conditions  of  man  (less  difficult  of  compari- 
son and  less  variable  historically.)  And  then,  after  surmounting 
the  difficulty  of  making  the  legislator  understand  the  data  of 
sociological  observation,  we  may  outline  them  in  a  very  restricted 
way  and  by  indirect  means.  If,  on  the  other  hand,  we  have  deter- 
mined the  influence  which  a  civil  law,  a  poUce  regulation,  an  ex- 
cise tax,  an  institution  of  public  charity,  or  a  measure  relating  to 
commerce,  agriculture,  or  the  like,  exercises  on  criminal  activity, 
we  find  ourselves  confronted  with  effects  purely  social  and  conse- 
quently under  the  more  direct  and  efficacious  control  of  the  law- 
maker. Then  the  legislator,  with  an  adequate  knowledge  of  the 
social  factors  of  crime  and  their  respective  force,  can  not  only 
correct  exaggerated  or  false  ideas  on  the  importance  of  certain 
remedies,  but  even  suppress  or  modify  the  causes  of  disorder  by 
preparing  a  different  social  organization  and  thus  organizing  a 
truly  effective  defense  against  the  criminal  activity  of  man.  Nat- 
ural forces  can  be  overcome  only  by  opposite  and  divergent  natm-al 
forces.  Hence,  the  criminal  sociologist,  abandoning  the  sterile 
illusion  that  crime  springs  from  the  fiat  of  individual  free  will, 
will  determine  first  of  all  the  direction  and  intensity  of  the  nat- 
ural forces  which  produce  crime  in  order  to  know  how  to  oppose 
them  by  other  natural  forces  protective  of  right,  which  will  fruc- 
tify lawful  activity  and  honest  energy.  This  is  also  the  reason 
why  the  data  of  criminal  statistics,  which  we  shall  study  in  this 
chapter,  comprehend  the  social  side  of  crime  as  more  important 
and  less  explored  by  scientific  research,  for  complete  fight  has 
been  shed  upon  it  only  by  the  new  direction  of  criminal  sociology. 

§  116.  Statistics  and  History. 

In  the  study  of  this  sociological  side  there  are  some  who  think 
that  criminal  statistics  should  be  not  only  aided  but  controlled  by 
historical  research.  They  contend  that  in  gathering  and  study- 
ing the  factors  of  crime,  the  statistical  phase  is  not  enough  with- 
out the  evolutionary  movement  of  succession  afforded  by  history.^ 

'  Colajanni,  "Sociologia  criminale,"  II,  pp.  46,  47,  54;  Neumann,  "Sociologie 
und  Statistik,"  in  "Statistica  Monat."  (Vienna,  1878);  Vanni,  "Prime  linee  di 
un  programma  critico  di  sociologia"  (P^rouse,  1888),  §  VI. 

And,  for  general  statistics,  Juglar,  "Les  tableaux  statistiques  portent-ils  les 
traces  des  6v6nements  historiques,  politiques  et  6conomiques?"  "Journal  de  la 
Societe  Statistique"  (Paris,  July  1,  1898). 


176  DATA  OF  CRIMINAL  STATISTICS  [§  116 

The  thought  that  history  can  aid  statistics  is  right,  although  it  is 
inexact  to  say  that  statistics  give  only  a  static  moment.  The  idea 
is  not  new  and  from  it  comes  the  erroneous  definition  of  Schloser 
to  the  effect  that  "history  is  statistics  in  motion  and  statistics 
history  at  rest " :  yet  (although  under  different  modes)  coexistence 
and  succession  are  common  to  both  history  and  statistics.  What 
is  inexact  is  the  other  idea  that  history  serves  as  a  control  for 
statistics.  I  will  not  insist  upon  the  fact  that  history,  as  generally 
written,  is  but  the  superficial  and  sterile  registration  of  the  ex- 
ternal and  apparent  events  of  social  life,  or  that  history  does  not 
go  deeply  into  physical,  psychological  and  sociological  conditions. 
It  is  very  true,  however,  that  history,  even  when  treated  in  a 
positive  spirit  and  with  a  positive  method,  can  of  itself  give  only 
qualitative  elements,  while  those  given  by  statistics  are  essen- 
tially quantitative:  hence  it  is  hard  to  persuade  oneself  that  one 
can  accurately  control  the  other. 

§  116.  Distinction  between  Natural  and  Legal  Crime. 

Let  us,  therefore,  eliminate  this  control.  As  a  rule  of  method 
in  gathering  and  studying  statistics  one  thing,  to  which  in  my 
opinion  not  enough  importance  has  hitherto  been  given,  is  the  dis- 
tinction between  the  forms  of  natural  and  legal  crime.  Every 
law  promulgated  is  a  direct  or  indirect  source  of  infractions  which 
go  to  swell  the  figures  of  penal  statistics.  A  mania  of  legislation 
thrives  today  in  civilized  countries,  whose  short-sighted  govern- 
ments do  not  look  beyond  the  symptoms  of  social  pathology  and 
who  oppose  a  new  prohibitive  law  to  each  new  or  more  acute  symp- 
tom. Thus  they  multiply  laws,  but  not  their  preservative  effi- 
ciency, while  the  causes  of  these  symptomatic  facts  remain  intact 
or  even  become  envenomed.  Therefore  it  is  evident  that  in  the 
study  of  long  statistical  series  we  are  confronted  ^  with  a  numeri- 
cal increase  of  violations  of  a  purely  contraventional  character  or 
of  "purely  political  creation,"  which  have  very  little  relation  to 
natural  crime,  which  is  of  greater  interest  because  it  destroys 
the  conditions  of  social  existence.  Thus,  without  even  going  out 
of  the  domain  of  statistics,  "the  discussions  and  controversies 
which  have  taken  place  in  Italy,  Germany,  and  England  on  the 
increase  or  decrease  of  crime,  arose  because  of  a  failure  of  the 
necessary  separation  of  natural  from  political  crimes  and  contra- 
ventions, or  because  of  its  impossibility  by  reason  of  the  defective 
*  Ferri,  "Ctudes  sur  la  criminalite  en  France"  (1881). 


§116]  COLLECTING  CRIMINAL  STATISTICS  177 

manner  in  which  the  statistics  were  prepared."^  It  is  necessary 
and  urgent  that  this  distinction  between  natural  and  legal  crimes 
should  always  be  regarded  in  the  data  and  inductions  of  criminal 
sociology.  As  we  have  seen,  it  is  rooted  in  criminal  anthropology 
and  we  shall  see  it  applied  to  all  of  the  researches  of  criminal 
statistics  —  on  the  relation  between  civilization  and  crime,  on 
the  movement  of  criminality  in  Europe,  on  the  personal  qualities 
of  criminals,  on  the  law  of  criminal  saturation.  We  shall  see  it 
shown  accurately  in  the  separation  of  ordinary  from  politico- 
social  crime.  This  distinction  is  fundamental:  without  it,  con- 
fusion would  reign  in  the  researches  of  criminal  anthropology  and 
statistics  and  the  conclusions  from  these  studies  would  be  extrav- 
agant. Without  it,  we  could  not  discern  nor  regulate  the  double 
origin  and  function  of  penal  justice  which  we  shall  take  up  at  a 
later  point.  These  incrustations  of  class  defense  (which  easily 
degenerates  into  class  tyranny)  against  the  forms  of  legal  crime, 
add  to  the  primitive  and  permanent  kernel  of  social  defense  against 
the  forms  of  natural  crime.  The  most  violent,  most  ineffective, 
most  iniquitous  repression,  through  lack  of  appreciation  of  the 
bio-social  genesis  of  the  double  series  of  attacks  on  the  conditions 
of  social  existence,  will  no  longer  be  employed  indiscriminately 
for  both. 

^  Bosco,  "Lo  studio  della  delinquenza  e  la  classificazione  dei  reati  nella  statis- 
tica  penale,"  in  the  "Bulletin,  Indust.  intern.  Stat."  (1892),  VI,  p.  2,  p.  184. 


CHAPTER   II 

CIVILIZATION  AND  CRIME 

Relation  betweoi  hcmest  and  criminal  activity.     Anthropological,  physical  and 
social  factors  of  crime. 

§  117.  Evolution  of  Crime.    Pathological  Incidents  of  Civilization. 

Aftek  thus  developing  the  method  of  observation  and  inter- 
pretation of  the  data  of  criminal  statistics,  and  before  making  in 
broad  outline  a  positive  examination  of  it,  another  observation  of 
a  general  character  requires  consideration.  One  of  the  questions 
which  arose  at  the  very  beginning  ^  of  criminal  statistics,  in  the 
presence  of  the  continual  increase  of  crime  in  the  civilized  countries 
of  Europ>e,  was  the  relation  of  civilization  to  crime  as  well  as  to 
insanity  and  suicide.  Evolution,  whether  in  the  sociological  or 
biological  order,  does  not  of  itself  necessarily  imply  absolute  prog- 
ress; but  advance  in  one  direction  is  accompanied  by  some  reac- 
tion in  another,  notwithstanding  the  uninterrupted  ascent  as  a 
general  resultant.  Hence  it  is  that  one  may  say  of  civilization, 
especially  in  its  manifestations,  often  pathological,  at  the  end 
of  the  nineteenth  century,  and  of  the  decline  of  the  bourgeoise 
regime,  what  is  said  of  degenerescence  in  the  biological  domain. 

§  118.  Evolution  of  Crime  in  Civilization. 

As  every  progressive  evolution  is  accompanied  by  a  retrogres- 
sive evolution  of  the  preceding  forms  and  functions,  so  even  degen- 
eracy itself  may  be  accompanied  by  progressive  evolution.  In 
the  same  way  that  genius  is  the  sublime  product  of  a  biological 
degeneracy  accompanied  by  inferior  manifestations   (impulsive- 

'  Romagnosi,  "  Osservazioni  statistiche  sul  resconto  della  giustizia  criminale 
in  Francia,"  in  the  "Annali  Universali  di  statistica,"  1829,  XIX,  I;  Lombroso 
"L'uomo  delinquente,"  2d  ed.,  pp.  251-269,  and  5th  ed.,  vol.  Ill,  p.  46;  Measedaglia, 
"La  statistica  della  criminality"  (Rome,  1879),  pp.  35  a  seq.;  Oettingen,  "Moral- 
statistik,"  §  48;  "Bildmigmid  Sittlichkeit"  in  the  "Baltische  Monatschrift,"  XXX, 
4,  pp.  333,  et  seq.;  Tarde,  "La  statistique  criminelle,"  R.  P.  (January,  1883),  and 
"Criminality  comparfe,"  Cap.  II  and  Cap.  IV,  §  3;  Turati,  "D  delitto  e  la  ques- 
tione  sociale";    Ferri,  "Socialismo  e  criminality." 

178 


§  118]  CIVILIZATION  AND  CRIME  179 

ness,  lack  of  balance,  dull  sensibilities),  —  so  also  civilization, 
alongside  of  the  most  brilliant  manifestations  of  human  progress, 
exhibits  to  us  the  toxic  products  of  the  special  criminality  proper 
to  it,  of  suicide,  or  insanity.^  For  my  part,  I  think  that,  putting 
aside  the  causes  of  equivocation  that  come  from  the  diflferent 
meanings  given  the  word  civilization  which  we  should  understand 
as  simply  expressing,  without  teleological  preoccupation,  the 
evolutionary  movement  of  social  life,  we  could  say  with  Messe- 
dagUa,  that  civilization,  Uke  barbarism,  has  its  own  characteristic 
criminality.  Furthermore,  in  opposition  to  the  primitive  thesis  of 
sentimental  socialism  which  attributed  the  origin  of  crime  to 
bourgeoise  organization,  I  argued  and  I  argue  (with  the  assent 
to-day  of  scientific  socialism)  that  every  phase  of  civilization  has 
its  peculiar  criminality  which  corresponds  to  it.  As  there  was 
a  criminality  of  violence  and  bloodshed  in  feudal  society,  and  a 
criminality  of  robbery  and  fraud  in  bourgeoise  society,  so  the 
criminality  of  society  of  the  future  will  have  its  own  appropriate 
character.  Two  phenomena  may  be  met  in  the  history  of  crime: 
first,  as  Tarde  has  observed,  civilization  reabsorbs  successively 
the  forms  of  criminaUty  which  it  has  determined  and  determines 
new  forms;  second,  crime  undergoes  a  double  morphological  evo- 
lution which  makes  it  the  typical  expression  of  each  historical 
period  for  each  social  group.  Leaving  aside  the  extension  of  crime 
due  to  special  laws  in  the  forms  of  purely  conventional  delinquency, 
natural  crime  passes  more  and  more  from  the  material  forms  of 
violence  into  the  intellectual  forms  of  cunning  and  fraud.  It  thus 
reproduces  the  evolution  by  which  man  ceaselessly  gets  further 
and  further  away  from  his  animal  and  savage  origin.  Crimes 
against  property,  especially  in  the  numerous  forms  of  indirect 
robbery,  become  more  and  more  numerous  in  comparison  with 
crimes  of  bloodshed.  Even  the  latter  assume  forms  more  and 
more  intellectual,  and  homicide  itself  is  contrived  with  craft  in- 
stead of  violence.  The  brutal  infanticide  which  Tolstoi  pictures 
in  the  "Puissance  des  tenebres"  where  he  describes  the  father 
who  crushes  his  child  under  a  timber  in  a  cave,  is  succeeded  by  the 
sophisticated  infanticide  which  d'Annunzio  represents  in  the 
"L'  Innocento"  where  he  describes  a  father  who  gives  his  new-born 

^  Carpenter,  "Civilisation,  its  Cause  and  Cure"  (London,  1889);  Demoor, 
Massart  and  Vandervelde,  "L' evolution  regressive"  (Paris,  1897);  DeGreef,  "Le 
transformisme  social"  (Paris,  1896);  Lombroso,  "Genio  e  degenerazione " ;  Ferri, 
"La  rehabilitation  des  anormaux,"  "Revue  des  Revues"  (15  February,  1889). 


180  DATA  OF  CRIMINAL  STATISTICS  [§  119 

child  pneumonia  by  exposing  it  to  the  blasts  of  a  Christmas  night.^ 
Thus  in  Italy  we  have  seen  brigandage  transformed  in  these  last 
years  and  pass  from  the  armed  robberies  of  the  Middle  Ages  and 
from  ransoms  demanded  of  its  victim,  into  the  pensions  which 
Tiburzi  received  and  which  Varsalone  receives  from  great  pro- 
prietors for  protecting  them  against  the  smaller  thieves. 

§  119.  Evolution  of  Crime. 

In  regard  to  the  law  of  social  stratification,  we  see  that  the  in- 
creasingly intellectual  evolution  of  crime  results  in  the  shortening 
of  the  passage  from  the  popular  strata  to  the  so-called  superior 
classes,  which  implies  the  abandonment  of  violent  and  impulsive 
for  astute  and  cunning  forms.  This  transformation  is  verified 
by  analogy  between  the  social  progress  and  criminality  in  the 
subdivisions  of  the  same  country,  and  in  their  relation  in  the  less 
progressive  countries  of  Spain,  Italy,  Greece,  Hungary,  and  Rus- 
sia, and  the  more  progressive  countries  of  Northern  Europe.  The 
same  transitions  are  observed  in  North  America  in  going  from 
the  backward  States  of  the  Southwest  to  the  more  advanced 
Northeastern  States.^  Again,  and  parallel  with  this  morphologi- 
cal outline,  which  it  is  true  does  not  express  a  real  support  of  moral 
sentiment,  crime  passes  from  the  acute  and  sporadic  state  to  the 
chronic  and  epidemic.  Superficial  observers  have  spoken  of  an 
end-of-the-century  ("fin  de  siecle")  criminaHty,  but  the  expres- 
sion is  meaningless  because  the  arithmetical  di\asion  of  time  is 
quite  arbitrary.  Max  Nordau  speaks  of  a  criminality  indicative 
of  the  end  of  the  race  ("fin  de  race") ;  but  it  is  more  exact  to  say 
with  Sighele  that  there  is  question  of  a  criminality  of  the  end  of 
class  ("fin  de  classe")  since  in  our  day  we  see  reproduced  in  the 
bourgeoise  class  the  phenomena  of  social  degeneracy  which  two 
hundred  years  ago  announced  the  end  of  the  then  dominant  classes 
and  which  caused  Voltaire  to  say  that  he  had  "great  desire  to 
walk  on  four  paws."  ^ 

»  Fern,  "I  delinquenti  nell'  orte"  (1896). 

'  NicefoTO,  "L'ltalia  Barbara  contemporanea"  (Palermo,  1898);  Bosco,  "Gli 
omicidii  in  Europa";  "L'omicidio  negli  stati  uniti,"  ibid.,  X,  1;  Ferri,  "L'omi- 
cidio,"  pp.  250  et  seq. 

*  The  author,  no  doubt,  alludes  to  the  well-known  letter  of  Voltaire  to  Rous- 
seau (30  August,  1755).  In  this  case  the  expression  of  Voltaire  does  not  bear  the 
construction  given  to  it:  it  merely  scoffs  in  a  just,  if  sarcastic  way,  at  the  chimeri- 
cal ideal  which  Rousseau  seems  to  have  pictured  to  himself  of  primitive  savage 
men,  according  to  him  perfectly  moral  and  perfectly  happy,  and  to  whom  civiliza- 
tion only  brought  inequality,  vice,  and  misery. 


§§  120,  121]  CIVILIZATION  AND  CRIME  181 

§  120.  Crime  and  Education. 

In  fact,  we  observe  every  day  that  criminality  under  certain 
intellectual  and  disguised  forms  is  not  restricted  to  the  "putrid 
environment,"  of  which  Tarde  recently  spoke,  but  that  it  exists 
among  all  of  the  social  classes,  even  the  most  cultivated.  This  is 
sufficient  to  show  how  baseless  is  the  reproach  which  certain 
persons,  with  more  or  less  avowed  reactionary  intent,  oppose  to 
popular  education,  that  it  contributes  to  the  increase  of  fraudu- 
lent crime.  As  Rumelin,^  an  author  above  suspicion,  has  himself 
conceded,  intellectual  cultm-e  cannot  but  aid  the  moraUty  of  the 
masses,  not  only  as  an  indirect  influence  (as  maintained  from 
Socrates  to  Buckle,  for  the  reason  that  ignorance  is  a  formidable 
source  of  perversity)  but  further,  I  should  say,  as  a  direct  influence, 
since  education  aids  in  correcting  or  diminishing  improvidence  in 
the  great  mass  of  occasional  delinquents,  and  this  is,  in  their  case, 
the  most  powerful  stimulant  to  crime. 

§  121.  Crime  and  Ease  of  Conditions  of  Life. 
Since  criminality  is  always  in  its  general  average  related  to 
the  greater  or  lesser  ease  of  the  conditions  of  life,  neither  an  Uto- 
pian return  to  the  dominance  of  religious  beliefs  nor  the  bar- 
barous proposal  of  restricting  popular  education  will  put  an  end 
to  the  criminal  epidemic  of  the  last  fifty  years.  The  remedy  can 
only  be  found  in  an  amelioration  of  the  conditions  of  human  exis- 
tence through  a  more  satisfactory  economic  organization  of  so- 
ciety. Since  the  symboUcal  cry  —  enrich  yourself  —  was  launched 
in  the  first  half  of  the  last  century,  the  moral  malady  of  "cteso- 
mania"  (mania  for  wealth),  which  makes  wealth  the  supreme 
end  in  life  and  the  necessary  condition  of  happiness,  it  has  never 
ceased  to  develop.  The  value  of  a  man  is  caculated  not  on  what 
he  is  but  on  what  he  has,  so  that  contemporaneous  humanity 
lives  under  the  obsession  of  riches.    Now  ctesomania  always  leads 

1  Rumelin,  "ProblSme  d'^conomie  politique  et  de  statistique"  (Paris,  1896), 
pp.  221  et  seq. 

See  also  for  and  against,  FouillSe,  "  Les  jeimes  criminels,  I'^cole  et  la  presse," 
R.  D.  M.  (15  January,  1897);  Rostand,  "Pourquoi  criminality  monte  en  France  et 
baisse  en  Angleterre,"  in  the  "Reforma  sociale";  Tarde,  "La  jeunesse  criminelle," 
in  the  "Revue  pedagogique"  (March,  1897),  and  "Etudes  de  psychologic  sociale" 
(Paris,  1898);  Worms,  "L'6cole  et  le  crime,"  B.  U.  D.  P.  (1898),  L  p.  46;  Bodio. 
"Instruzione  e  delinquenza,"  in  the  "Cultura"  (February,  1895). 

As  an  index  to  the  wholesome  influence  of  education,  see  the  parallel  move- 
nient  of  civil  litigiousness  and  of  crime,  in  Fenoglio,  "  Litigiosit&  e  criminality,"  in 
the  "Reforme  sociale"  (25  May,  1896). 


188  DATA  OF  CRIMINAL  STATISTICS  [§  122 

to  kleptomania  (mania  for  either  direct  or  indirect  theft).  The 
religious  idea,  vanishing  under  the  action  of  scientific  truths,  a 
void  is  made  in  the  soul  of  contemporary  generations,  after  the 
realization  of  the  patriotic  ideal.  They  encounter  some  snowy 
night  the  glacial  breath  of  scepticism,  which  permits  the  free 
deployment  of  every  immoral  and  criminal  tendency.  Only  the 
great  human  ideal  of  the  new  generations  at  present  prophesies 
the  end  of  this  night,  and  hence  the  end  of  this  criminal  epidemic 
to  the  moral  conscience.  In  the  new  human  civilization,  which 
will  succeed  the  bourgeoise  civilization,  as  the  latter  succeeded 
feudalism,  the  conditions  of  existence  will  be  assured  to  every 
man  in  return  for  moderate  labor.  And  thus  morality  will  be 
strengthened  and  elevated,  for  immorahty  develops  where  the 
struggle  for  existence  is  too  painful  (as  the  consequence  of  exhaust- 
ive toil)  or  too  easy  (as  the  consequence  of  idleness  and  para- 
sitism). Toil,  socially  regulated  and  rewarded,  will  be  an  effective 
preservative  against  crime  and  vice.  They  will  cease  to  be  epi- 
demic and  will  be  restricted  to  isolated  cases  of  acute  pathology, 
when  the  new  civilization  will  oblige  every  human  being,  except 
the  infirm  and  children,  to  toil  productively  in  some  form  or  other 
whether  manual  or  intellectual  (and  the  separation  between  the 
two  will  always  continue  to  decrease);  and  when  it  will  assure 
every  man,  in  return  for  his  labor,  an  existence  worthy  of  a  human 
creature,  and  not  the  life  of  a  slave  or  a  beast  of  burden.  But 
these  relations  between  civilization  and  crime  exceed  the  Hmits 
of  statistical  researches  since  they  do  not  go  back  prior  to  1800 
and  therefore  always  reflect  the  period  of  bourgeoise  civiUzation. 
We  can  at  most  take  from  the  annual  series  of  criminal  statistics 
periods  of  crisis  and  of  calm,  which  are  reflected  in  the  intensity 
and  extension  of  delinquency.  These  abstracts  of  statistics  we 
shall  presently  take  up  in  studying  the  general  movement  of 
crime  in  the  principal  countries  of  Europe. 

§  122.  Numerical  Increase  in  Crime  Shown  by  Statistics. 

Aside  from  the  general  problem  of  the  relations  between  civili- 
zation and  crime  (of  which  no  solution  can  be  given  by  statistics 
alone  which  until  now  apply  to  relatively  short  periods  and  be- 
cause such  relations  properly  belong  to  historical  sociology),  there 
is  a  more  rigorously  statistical  question  connected  with  this  prob- 
lem which  should  be  examined.  I  mean  the  general  interpreta- 
tion and  sociological  import  attributed  to  the  figures  of  statistics 


§  122]  CIVILIZATION  AND  CRIME  183 

which  attest  the  numerical  increase  of  crime  in  our  own  time. 
The  idea  has  long  since  occurred  to  some  observers  of  criminal 
statistics  that  the  increase  in  the  number  of  crimes  should  be 
attributed  not  to  an  increase  of  individual  energies  or  tendencies 
but  rather  to  the  increasing  number  of  occasions  and  external 
incentives  due  to  a  multiphcation  of  legal  relationships  and  of 
moveable  property.  Thus,  for  example,  in  1828,  on  the  occasion 
of  a  debate  in  which  Peel,  in  the  House  of  Commons  declared 
that  as  civihzation  advanced  property  became  less  respected, 
Lucas  observed  that  "the  progress  of  civihzation  augmented 
the  number  of  useful  things  and  the  cupidity,  naturally  excited, 
found  more  occasions  of  usurpation  and  hence  more  temptations. 
Growing  civilization  affords  more  things  to  be  stolen,  hence  crimes 
should  multiply.  It  is  not,  therefore,  because  property  is  more 
exposed  to  theft  but  because  there  are  more  properties  exposed 
to  theft.  Furthermore,  as  the  progress  of  civilization  is  only  that 
of  individual  liberty  it  spreads  the  abuse  with  the  use.  To  make 
a  sane  estimate  of  the  morahty  of  human  liberty  and  of  civiliza- 
tion, the  extension  of  the  abuse  should  be  judged  in  comparison 
with  the  extension  of  the  use."  ^  More  recently  Jellinek  in  Ger- 
many and  Messedaglia  in  Italy,  without  mentioning  others,  have 
expressed  the  same  idea.^  It  was  for  this  reason  that  I,  in  turn, 
in  my  "Studi  sulla  criminaUta  in  Francia"^  confronted  the 
numerical  increase  of  crimes  and  dehcts  not  only  with  legislative 
variations,  which  change  the  material  extension  of  the  data  by 
creating  new  forms  of  offenses  and  not  only  with  the  increase  of 
population,  —  but  also  with  the  number  of  judicial  poUce  agents, 
who  both  increase  the  number  of  discovered  offenses  and  give 
more  frequent  occasion  for  certain  offenses,  such  as  resistance 
and  violence,  and  finally,  with  the  increase  of  wealth  and  exchange- 
able commodities.  For  a  more  complete  explanation  and  a  more 
accurate  interpretation  of  statistical  data,  this  observation  pos- 
sesses an  incontestable  and  undisputed  value.  But  more  recently 
Poletti  assigns  it  a  much  wider  range.^    In  accord  with  my  "Studi 

1  Lucas,  in  the  "Bulletin  of  M.  Ferussac"  (September,  1828),  p.  188,  III. 

*  Jellinek,  "Die  sozial-etische  Bedeutimg  von  Recht,  Unrecht  iind  Strafe," 
(Vienna,  1878),  p.  79.  So  even  before  him,  Av6  Lallemant,  "Das  deutsche  Gaimer- 
thum,"  II,  34,  cited  by  Schaeffle,  "Bau  und  Leben  des  socialen  Korpers";  Messe- 
daglia, "La  statistica  criminale  dell'  impero  austriaco"  (Venice,  1867),  p.  13; 
"Alcuni  argomenti  di  statistica  teorica,"  "Archivio  di  statistica,"  V,  1. 

»  Published  in  1881. 

*  Poletti,  "Del  sentimento  nella  scienza  del  diritto  penale"  (Udine,  1882),  p. 
79,  81. 


184  DATA  OF  CRIMINAL  STATISTICS  [§  122 

sulla  criminalita  in  Francia,"  he  observed  that  in  the  period  from 
1826  to  1878  crime  increased  from  one  hundred  to  two  hundred 
and  fifty-four,  while  in  the  same  country,  the  imports  had  increased 
for  the  same  period  from  one  hundred  to  seven  himdred,  the  ex- 
ports in  about  the  same  proportion  and  the  national  budget  from 
one  hundred  to  three  hundred.  Nor  was  that  all.  He  further 
showed,  always  conformably  to  my  book,  the  progression  of  the 
mutations  of  personalty  and  realty,  of  charitable  institutions,  of 
mutual  aid  societies,  of  agricidtural  production,  of  the  consump- 
tion of  wheat:  he  considered  that  this  progression  indicated  "in 
the  social  activity  of  France"  for  this  period  (1826-1878)  a  devel- 
opment which  found  in  the  corresponding  increase  of  the  public 
revenues  (from  one  hundred  to  three  hundred)  its  most  faithful 
total  expression :  and  he  drew  from  these  comparisons  the  conclu- 
sion that  "in  French  criminality  in  the  period  from  1826  to  1878 
there  was  no  increase  but  a  positive  decrease."  ^  In  this  apprecia- 
tion by  Poletti,  if  we  put  aside  the  grain  of  truth  contained  in  the 
primitive  idea  expressed  by  others  before  him,  the  rest  lacks  scien- 
tific accuracy  in  two  particulars.  The  first  is  that  the  mathemat- 
ical expression  of  this  idea  is  impossible:  the  second,  that  for  this 
very  reason  practical  appUcations  of  the  idea  are  extravagant 
and  arbitrary.  The  mathematical  or  even  the  merely  precise 
expression  of  a  comparison  between  criminal  and  economic  activ- 
ity is  impossible  for  the  simple  reason  that  if  we  could  approxi- 
mately fix  the  first  term  of  the  equation  by  the  number  of  offenses 
prosecuted  and  tried,  we  could  not,  as  to  the  second,  in  view  of 
the  infinite  variety  of  elements  which  comp>ose  it,  give  even  an 
approximate  total  value.  And  again,  as  I  have  said  elsewhere,^ 
only  an  arbitrary  and  inexact  comparison  can  be  made  between 
the  percentage  of  crime  and  that  of  certain  forms  of  economic 
activity.  What  relation  is  there  really  between  an  increase  of 
crime  from  one  hundred  and  fifty-four  per  cent,  and  an  increase 
of  six  hundred  per  cent,  in  commercial  activities?  Furthermore, 
as  Tarde  asks,^  could  there  be  a  relation  between  the  number  of 
thefts  and  of  sales  or  leases? 

*  See  Poletti,  "Del  sentimento  nella  scienza  del  diritto  penale,"  pp.  79-81. 

*  Ferri,  "Socialismo,  psicologia  e  statistics  nel  diritto  criminale,"  A.  P.,  IV,  2, 
1883,  p.  235. 

»  Tarde,  "La  statistique  criminelle,"  in  the  R.  P.  (1883),  p.  56,  and  "Crimi- 
nality compare  "  (Paris  1886). 


§  123]  CIVILIZATION  AND  CRIME  185 

§  123.  Actual  Increase  in  Crime. 

For  this  reason  the  appUcations  of  this  idea  made  by  Poletti 
to  criminahty  in  France  and  Italy  are  arbitrary  and  extravagant. 
They  are  arbitrary  because  it  is  not  proven  that  a  certain  per- 
centage of  decrease  or  increase  (even  conceding  that  a  comparison 
were  possible)  has  the  same  value  in  the  case  of  crimes  as  in  the 
case  of  commerce,  imports,  or  the  consumption  of  foodstuffs. 
How  can  one  say  that  "the  social  activity  of  France"  (indeed  so 
imperfectly  represented)  having  increased  in  fifty  years  two 
hundred  per  cent,  and  the  criminal  activity  only  a  hundred  and 
fifty  per  cent,  that  therefore  there  results  "a  positive  diminution" 
in  French  criminality.'*  This  is  another  verification  of  the  bio- 
sociological  law  mentioned  in  the  last  chapter,  according  to  which 
the  most  important  vital  elements  undergo  the  sHghtest  varia- 
tions, yet  these  variations  have  the  greatest  importance.  In  a 
social  sense,  therefore,  I  am  of  opinion  that  an  increase  of  ten  per 
cent,  in  crime  (especially  homicide  and  brigandage)  has  greater 
significance  than  an  increase  of  thirty  per  cent,  in  the  exporta- 
tion of  grain  or  the  receipts  of  the  budget.  Otherwise  one  might 
say,  Tarde  observes,  that  the  comparison  of  the  more  frequent  and 
dangerous  immoraUties  of  city  life  (which  have  developed  re- 
markably) with  the  enormous  number  of  recorded  adulteries 
discloses  a  real  progress  in  the  chastity  of  women.  Certainly 
business  is  more  active  but  it  is  equally  certain  that  we  run  greater 
risk  now  than  fifty  years  ago  of  being  robbed,  cheated,  or  swin- 
dled. Further,  if  we  pass  from  the  objective  criteria  of  crimes 
to  the  subjective  criteria  of  criminals,  it  is  my  observation  that 
in  France,  for  example,  while  there  were,  from  1826  to  1830,  one 
hundred  and  fifty-two  persons  in  each  hundred  thousand  charged 
with  correctional  delicts,  —  from  1875  to  1880  there  were  one  him- 
dred  and  seventy-four:  This  means  that  the  increase  of  crime  is 
not  only  numerical  and  absolute,  but  that  it  occurs  proportionately 
to  population.  Retaining  the  primitive  idea  of  Poletti's  theory,  that 
is  affirming  in  the  last  analysis  the  necessity  of  a  double  criterion, 
the  increasing  population  on  one  hand  and  the  increasing  activity 
in  the  surveillance  of  criminals  on  the  other,  the  positive  school 
has  opened  up  an  entirely  new  field  of  fertile  observation  by  clas- 
sifying the  factors  of  crime.  I  took  occasion  in  my  "Studi  sulla 
criminahta  in  Francia"  to  collect  in  three  natural  groups  all  the 
various  causes  which  determine  delinquency.    Prior  to  its  pub- 


186  DATA  OF  CRIMINAL  STATISTICS        [§§  124,  125 

lication  they  had  been  indicated  only  in  a  fragmentary  and  dis- 
orderly way,  without  any  causal  connection,  as  in  the  two  chap- 
ters of  Bentham,^  in  the  writings  on  criminal  statistics,  and  in 
the  work  of  Lombroso.  In  the  discussion  of  suicide  (another 
phenomenon  of  social  pathology),  they  have  been  grouped  by 
Morselli  into  a  better  organized  but  still  feebly  classified  series.^ 
Therefore,  viewing  the  honest  or  dishonest  actions  of  man  as 
always  the  product  of  his  physiological  and  psychical  constitution 
and  of  the  physical  and  social  atmosphere  in  which  he  is  bom 
and  lives,  I  have  distinguished  the  following  three  catagories: 
anthropological  factors  or  individual  factors  of  crime;  psychical 
factors;   and  social  factors. 

§  124.  Anthropological  Factors  in  Crime;  Organic  Constitution  of  the 

Criminals. 

Anthropological  factors  inherent  in  the  person  of  the  criminal 
are  the  first  coefficient  of  crime.  Since  a  criminal,  Hke  other  men, 
may  be  considered  either  as  a  separate  individual  (and  thus  con- 
sidered either  physiologically  or  physically),  or  as  a  member  of 
society  and  as  such  having  various  relations  with  other  men,  the 
anthropological  factors  of  crime  group  themselves  under  three  sub- 
divisions. To  the  first  (organic  constitution  of  the  criminal)  belong 
all  the  organic  anomalies  of  cranium,  brain,  viscera,  of  sensibility 
and  reflex  activity,  and  of  all  bodily  characteristics  in  general,  such 
as  pecuharities  of  physiognomy  and  tattooing.  These  have  been 
brought  to  light  by  the  numerous  labors  of  criminal  anthropology, 
and  briUiantly  collected  and  supplemented  in  the  work  of  Lom- 
broso. They  will  assuredly  be  followed  by  new  researches  in 
greater  number  and  with  increasing  fruitfulness. 

§  126.  Anthropologic  Factors  in  Crime ;  Psychical  Constitution  of  the 

Criminal. 

To  the  second  subdivision  (psychical  constitution  of  the  crim- 
inal) belong  all  the  anomalies  of  intelligence  and  sentiment,  es- 

'  Bentham,  "Principles  of  Legislation,"  Chap.  IX,  X,  enumerated  "the  cir- 
cumstances which  influence  sensibility"  and  of  which  "accoimt  must  be  taken  in 
matters  of  legislation"  as:  temperament,  the  basis  of  everything  —  health  — 
strength  —  bodily  imperfection  —  culture  —  intellectual  faculties  —  strength 
of  mind  —  perseverance  —  inclinations  —  ideas  of  honor  —  religious  ideas  and 
feelings  of  sympathy  and  antipathy  —  madness  —  financial'  conditions  —  sex  — 
age  —  social  class  —  education  —  customary  occupation  —  dinmte  —  race  —  gov- 
ernment —  religious  profession. 

*  Morselli  "Suicidio"  (Milan,  1879),  p.  49. 


§  126-129]  CIVILIZATION  AND  CRIME  187 

peciaUy  the  social  sense,  and  all  the  peculiarities  of  the  Uterature 
and  jargon  of  criminals.  On  all  these  points,  sufficient  data  have 
already  been  collected,  and  will  be  more  and  more  enriched  after 
the  prehminary  development  necessarily  given  to  organic  re- 
searches, for,  in  the  genesis  of  crime,  the  moral  temperament 
appropriate  to  delinquents  is  of  the  highest  importance. 

§  126.  Anthropological  Factors  in  Crime ;  Personal  Characteristics  of  the 

Criminals. 

In  the  third  subdivision  of  anthropological  factors  (personal 
characteristics  of  the  criminal)  are  embraced,  aside  from  the 
biological  conditions  of  race,  age,  and  sex,  the  biologico-social 
conditions,  such  as  civil  state,  profession,  domicile,  social  class, 
instruction,  and  education,  which  hitherto  have  been  studied 
almost  exclusively  by  persons  concerned  with  criminal  statistics. 

§  127.  Physical  Factors  in  Crime. 

Then  comes  the  series  of  physical  factors  (cosmo-telluric)  of 
crime.  These  include  the  causes  belonging  to  the  physical  environ- 
ment, all  very  efficient,  as  criminal  statistics  prove,  in  the  produc- 
tion of  different  manifestations  of  crime.  Such  are  climate,  nature 
of  the  soil,  succession  of  day  and  night,  and  seasons,  the  aimual 
temperature,  atmospheric  conditions,  and  agricultural  production. 

§  128.  Social  Factors  in  Crime. 
Finally,  there  is  the  category  of  social  factors  of  crime  which 
result  from  the  social  environment  in  which  the  delinquent  lives, 
such  as:  different  density  of  population,  the  state  of  public  and 
reUgious  opinion,  the  constitution  of  the  family,  the  educational 
system,  alcoholism,  the  economic  and  political  organization, 
organization  of  public  administration,  justice,  and  judicial  police, 
and  finally  the  civil  and  penal  legislative  system  in  general.  These 
contain  a  multitude  of  latent  causes  which  overlap,  intervene,  and 
combine  in  all  of  the  least  apparent  functions  of  social  life  and 
which  almost  always  escape  the  attention  of  theorists  and  prac- 
titioners and  of  criminologists  and  law-makers. 

§  129.  Classifications  of  the  Factors  in  Crime. 

This  classification  of  the  factors  of  crime,  which  has  been  ac- 
cepted by  the  greater  number  of  anthropologists  and  criminal 
sociologists,  seems  to  me  not  only  more  complete  and  better 


188  DATA  OF  CRIMINAL  STATISTICS  [§  130 

ordered  than  that  of  Bentham  or  Morselli,  but  also  more  accurate 
than  those  which  have  suice  been  proposed  for  the  study  of  crime. 
I  shall  not  speak  of  Lacassagne's  classification  which  is  funda- 
mentally identical  with  my  own  (published  earlier  than  his)  in 
which  he  considers  the  physico-chemical,  biological  (or  individual), 
and  social  factors,  which  intervene  in  the  production  of  crime. 
Yet  it  has  been  declared  by  Puglia  ^  that  our  classification  was 
taken  bodily  from  the  "  Saggio  critico  sul  diritto  penale  "  of  Bovio. 
And  Colajanni  later  even  went  so  far  as  to  say  that  Bovio's  classi- 
fication was  even  more  complete.^  Bovio's  "Saggio  critico" 
maintains,  first  of  all,  that  penal  law  contains  an  intrinsic  contra- 
diction because  of  the  impossibility  of  establishing  an  absolute 
ratio  between  crime  and  punishment  which  are  things  of  entirely 
different  nature.  This  impossibility  had  before  been  shown  by 
Conforti,  Tissot,  and  Ellero.  The  opportunism  of  other  classic 
criminologists,  who  have  attempted  an  empirical  solution  of  the 
problem,  does  not  at  all  weaken  this  condemnation  inflicted  on 
penal  law  by  metaphysical  deduction  itself. 

§  130.  Ratio  of  Civil  and  Penal  Justice. 

It  is  asserted  that  penal  justice  is  in  inverse  ratio  to  civil 
justice,  an  idea  already  developed  by  Filangieri  throughout  his 
work  "Scienza  della  legislazione "  and  particularly  in  the  conclu- 
sion of  his  third  chapter  which  treats  of  criminal  laws.  It  was 
Filangieri  who  wrote  the  eloquent  phrase:  "When  the  citizen  is 
no  longer  protected  by  the  sword  of  justice  he  resorts  to  the  poig- 
nard  of  the  assassin."  As  early  as  1861,  Maine  in  his  classic  work 
on  "Ancient  Law"  pointed  out  the  more  considerable  extension 
of  p)enal  laws  as  a  general  trait  of  primitive  peoples.'  And  further, 
even  from  the  statistical  point  of  view,  de  CandoUe  in  1830,  and 
Zincone  in  1872,  in  an  obscure  little  work,  accurately  brought  out 
the  preventive  influence  of  civil  justice  on  crime.*     In  any  event, 

^  Puglia,  "Risorgimento  e  awenire  della  scienza  criminale." 

*  Colajanni,  "Sociologia  criminale"  (1887),  II,  40. 

'  Maine,  "Ancient  Law,"  Chap.  X.  Carle  makes  the  same  observation  of 
Germany  in  the  Middle  Ages  in  "La  vita  del  diritto  ne'  suoi  rapporti  coUa 
vita  sociale"  (Turin,  1880),  p.  237;  he  always  attributed  the  predominant  de- 
velopment of  penal  disposition  in  Germanic  law  to  the  controlling  idea  of  indi- 
vidualism, —  an  ingenious  explanation,  but  one  which  needs  to  be  supplemented 
by  the  idea  of  the  primitive  imperfection  of  the  civil  law^. 

*  De  CandoUe,  "Sur  la  statistique  des  delits,"  in  the  "  Bibliotheque  Univer- 
selle  de  Geneve"  (1830);  Zincone,  "Dell'  aumento  dei  reati"  (Caserte,  1872),  pp. 
50  et  seq.  See  also  Spencer,  "Trop  de  lois"  (published  in  1853),  in  the  "Essais  de 
politique"  (Paris,  1879),  pp.  63  et  seq. 


§  131]  CIVILIZATION  AND  CRIME  189 

it  is  a  fact  that  the  historical  evolution  of  crime  occurs  through 
a  continuous  substitution  of  civil  in  place  of  penal  laws  for  the 
defense  of  individual  and  social  rights. 

§  131.  Criticism  of  Colajanni's  Classification  of  Crime. 

As  to  the  triple  cooperation  of  nature,  history,  and  society  with 
the  "personal  factor"  in  the  determination  of  crime,  which  in 
Colajanni's  opinion  would  be  a  more  perfect  classification  of  the 
factors  of  crime  than  mine,  there  is  present  an  inexact  conception 
that  cloaks  an  outgrown  idea,  —  a  metaphysical  idea,  and  con- 
sequently it  has  very  little  in  common  with  my  classification  of 
criminal  factors.  Really,  what  is  history  and  how  does  it  deter- 
mine crime?  History  does  not  exist  of  itself  and  only  acts  as  a 
biological  condition  of  the  hereditary,  physiological,  or  psycho- 
logical dispositions  of  the  individual;  or  as  the  social  condition  of 
customs,  public  opinion,  family,  economic,  or  pohtical  organiza- 
tion. Therefore  the  only  influence  which  history  can  have  on 
crime  is  like  nature  (anthropological  and  physical  factors),  or 
like  society  (social  factors).  Of  itself  it  is  only  the  redundancy  of 
syllogistic  symmetry.  And  when  they  discourse  on  the  "personal 
factor,"  i.  e.,  individual  free-will  with  the  concurrence  of  the  nat- 
ural factor  employed  by  history  and  society  in  the  determination 
of  crime,  who  fails  to  see  that  the  problem  is  left  in  the  anti- 
quated metaphysical  circle  and  that  there  is  always  the  question 
of  moral  liberty  of  which  the  wings  are  more  or  less  clipped?  In 
conclusion,  we  always  find  ourselves  confronted  by  the  animism  of 
which  we  have  already  spoken  and  in  the  name  of  which,  Tarde, 
for  example,  in  criticising  my  classification  of  the  criminal  factors 
declares  "that  the  employment  of  organic  potencies,  the  reali- 
zation of  those  virtualities  which  constitute  the  personal  factor 
and  which  are  in  a  measure  susceptible  of  direction,  depend,  in 
crime  or  virtue,  on  the  conscious  and  voluntary  personality  which 
has  accentuated  them  for  good  or  evil."  ^  I  repeat  that  thereby 
they  intend  to  indicate  the  concurrence  of  the  physico-psychical 
make-up  of  the  individual,  that  is,  the  anthropological  factors  in 
the  origin  of  crime  (and  in  such  case  there  is  no  reason  to  distin- 
guish the  very  factors  which  constitute  the  personality  of  the 
delinquent  and  which,  being  factors  of  the  physical  and  social 
environment,  are  necessarily  determined  in  accordance  with  the 

^  Tarde,  "Le  deuxi^me  congr^  d'anthropologie  criminelle,"  in  R.  S.  (30 
November,  1889),  p.  687. 


190  DATA  OF  CRIMINAL  STATISTICS  [§  132 

laws  of  natural  causality);  or  else  (and  this  is  what  our  critics 
really  mean)  it  is  only  the  question  of  a  contraband  free  will.^ 
It  is,  therefore,  inexact  to  say  that  the  classification  of  criminal 
factors  which  I  have  proposed  was  borrowed  bodily  from  Bovio, 
or  that  it  needs  to  be  supplemented  by  the  joinder  of  "history" 
and  the  "personal  factor."  So  true  is  this  that  Colajanni  himself 
is  forced  to  admit  that  "the  value  and  efficiency  of  history  and 
the  personal  factor  can  only  with  difficulty  be  directly  illumi- 
nated .  .  .  and  hence  the  study  of  the  factors  of  crime  should  be 
restricted  to  the  physico-chemical,  anthropological,  and  social."  ^ 
This  is  why  Colajanni,  in  his  first  volume,  after  criticising  all  of 
the  data  of  criminal  anthropology  with  a  great  reserve  of  syllo- 
gisms and  with  inexcusable  errors  of  fact,  finally  accepts  the  two 
most  imp>ortant  conclusions,  on  atavism  and  on  the  classification 
of  criminals  that  we  had  drawn  from  such  data.  And  he  does  the 
same  in  his  second  volume  where  he  criticises  my  classification  of 
criminal  factors  at  the  start  and  finally  "restricts  his  study"  to 
the  only  factors  that  are  enumerated  in  that  classification. 

§  132.  Criticism  of  Aramburu's  Classification  of  Crime. 

Finally,  as  germane  to  my  classification  of  criminal  factors,  I 
will  say  only  a  word  about  the  objection  made  me  by  de  Aram- 
bm-u  and  others  charging  me  with  having  confused  the  accessory 
with  the  principal,  and  the  purely  accidental  causes  with  those 
which  are  really  determinative,'  That  is  an  ancient  distinction 
of  the  traditional  philosophy  which  has  no  serious  value.  All  of 
the  necessary  conditions  in  the  determination  of  a  phenomenon 
are  the  natural  causes  of  such  phenomenon,  and  there  is  no  essen- 
tial difference  but  only  a  difference  in  degree  between  accessory 
and  principal  or  between  what  is  determinative  and  what  is  occa- 
sional. The  heart  is  a  principal  organ  and  the  vein  an  accessory, 
but  both  are  absolutely  necessary  to  the  animal  organism.  With- 
out the  determining  occasion,  an  event  does  not  occur  notwith- 
standing all  of  the  other  causes  which  have  preceded.  The  drop 
of  water  is  occasional  but  without  it  a  liquid  would  never  have 
overflowed. 

1  See  P.,  Ill,  post. 

*  Colajanni,  "Sociologia  criminale,"  p.  43. 

*  De  Aramburu,  "La  nueva  ciencia  penal"  (Madrid,  1887),  p.  115.  I  have 
replied  to  this  in  the  preface  to  "Nuevos  horizontes  del  derecho  y  del  procedi- 
miento  penal"  (Madrid,  1887),  translated  into  Italian  by  Perez  Oliva. 


§  133]  CIVILIZATION  AND  CRIME  191 

§  133.  Criticism  of  Tarde's  Classification. 

I  prefer,  lastly,  to  make  reply  to  the  two  more  recent  objec- 
tions of  Tarde.  The  physical  factors,  he  says,  should  not  consti- 
tute a  separate  category  since  "they  are  active  only  when  identified 
with  anthropological  or  social  factors.  Chmate,  or  the  seasons, 
do  not  of  themselves  contribute  in  any  way  to  the  increase  or 
decrease  of  the  contingent  of  crime.  Their  action  is  limited  to 
figuring  in  a  number  of  very  complex  causes  which  modify  the 
organic  or  social  causes  whose  concurrence  is  necessary  in  the 
production  of  crime."  And  at  a  later  point  he  says:  "The 
more  elevated  an  organism  is,  the  more  it  escapes  the  servitude 
of  physico-chemical  excitations  and  even  though  it  uses  up 
aU  of  the  energy  which  it  has  stored,  it  acquires  more  and 
increasingly  disposes  of  these  excitations  and  freely  directs 
them  to  its  own  ends."  "Let  us  then  eliminate  physical  factors 
by  distributing  them  among  the  biological  and  social  factors."  ^ 
Leaving  till  the  next  part  the  question  of  this  pretended  direc- 
tion, which  every  superior  organism  claims  that  it  can  give  to  the 
physico-chemical  energies  which  give  it  life,  I  reply  that  if  this 
be  true,  then  the  social  factors  themselves  only  act  with  the  bio- 
logical conditions  of  the  delinquent.  Poverty,  morals,  traditions, 
and  the  political  order  are  of  themselves  impotent,  like  chmate, 
if  their  influence  does  not  affect  a  determinate  human  organism 
which  shows  either  an  honest  or  a  criminal  reaction.  I  shall 
not  discuss  another  objection  of  Tarde  that  denies  the  influence 
of  climate  because,  if  the  warm  season  in  our  hemisphere  deter- 
mines an  increase  of  personal  attacks,  Corre  has  demonstrated,  on  the 
other  hand,  that  in  Creole  countries  they  increase  in  the  cool  season. 
This  fact  can  only  confirm  the  influence  of  climate  and  the  seasons  on 
crime.  This  influence  is  shown  in  different  ways  according  to  the 
different  conditions  of  different  organisms  in  different  environ- 
ments, but  which  is  none  the  less  effective.  As  Corre  has  pointed 
out,  the  hot  season  in  our  countries  acts  as  a  stimulant  because  it 
is  temperate;  in  tropical  countries,  on  the  contrary,  it  is  depress- 
ing because  excessive.  This  is  why,  in  temperate  zones,  personal 
attacks,  which  are  more  directly  dependant  on  thermal  conditions, 
are  more  numerous  in  the  hottest  season  while  in  the  tropics  they 
occur  when  the  season  is  least  hot.^    Thus,  the  criticisms  of  Tarde 

*  Tarde,  "Le  deuxi^me  congr^s  d'anthropologie  criminelle,"  p.  687. 

*  Corre,  "Le  crime  en  pays  Creoles"  (Lyons,  1889),  p.  117;  he  controverts  those 


192  DATA  OF  CRIMINAL  STATISTICS        [§§  134,  135 

have  nothing  solid  or  positive  like  the  last,  or  else,  if  given  all 
of  their  logical  consequences,  they  would,  contrary  to  his  idea, 
terminate  in  the  elimination  not  only  of  physical,  but  also  of 
social  factors,  because  neither  operate  of  themselves  directly,  but 
only  by  the  influence  which  they  exert  on  the  organism  of  the 
individual.^  We,  therefore,  consider  the  classification  of  the 
factors  of  crime  into  anthrop>ological,  physical,  and  social  as  es- 
tabhshed,  to  be  the  only  one  which  answers  both  to  the  reaUty 
of  facts  and  to  the  necessities  of  the  study. 

§  134.  Complexity  of  Origin  of  Crime. 

In  connection  with  this  classification  there  come  to  mind  two 
basic  observations  on  the  general  relations  of  the  criminal  move- 
ment and  the  practical  effects  which  are  obtainable  in  the  defense 
of  society  against  crime.  The  first  is  that  in  view  of  "the  unex- 
pected bond  noticed  between  the  different  natural  agencies  hith- 
erto regarded  as  independent,"  ^  we  cannot  obtain  a  sufficient 
natural  reason  for  an  isolated  crime  or  for  the  entirety  of  crime 
unless  we  consider  each  factor  separately  as  well  as  all  together. 
Even  if  we  isolate  these  factors  for  the  purposes  of  study  and 
reflection,  yet  in  nature  they  always  act  together  and  form  an  in- 
dissoluble group,  a  fact  which  makes  all  of  them  more  or  less  nec- 
essary in  the  origin  of  crime.  This  simple  consideration  suffices  to 
show  the  utter  inaccuracy  of  the  contrary  and  one-sided  ways  of 
regarding  crime,  in  which  the  classical  school  sees  nothing  but 
the  "fiat"  of  the  human  will,  while  sentimental  sociaHsm  looks 
at  it  as  the  exclusive  product  of  the  social  environment.  The 
latter  imputes  to  the  present  "bourgeoise  society"  all  the  volun- 
tary evil  influences,  which  the  former  charges  to  the  mathematical 
point  of  individual  free  will.' 

§  135.  Ratio  of  Productivity  of  Different  Factors  in  Crime, 
The  second  observation  is:    If  the  three  classes  of  criminal 
factors  always  concur  in  the  determination  of  crime,  their  pro- 
ductive force  is  different,  not  so  much  in  the  absolute  sense  as 
relatively,  varying  in  the  various  categories  of  delinquents.    If  it 

who  attribute  an  exclusive  influence  to  social  factors  in  "  rEthnographie  cri- 
minelle"  (Paris,  1894),  pp.  47,  48. 

'  Such  seems  to  be  the  cause  of  the  contradiction  which  I  have  noted  in  the 
latest  writings  of  Tarde,  pp.  185,  186. 

*  Secchi,  "L'unita  della  forza  fisica"  (Rome,  1864),  Introd. 

•  Ferri,  "Socialismo  e  criminality." 


§  135]  CIVn^IZATION  AND  CRIME  193 

should  be  asked  whether  absolutely  speaking  the  anthropological 
factors  are  more  effective  than  the  physical  or  social  factors,  the 
problem  is  insoluble,  because  badly  stated.  It  would  be  the  same 
as  asking  which,  air  or  heart,  contributed  most  to  the  life  of  a  mam- 
mal, since  if  one  or  the  other  fails  the  combined  effect  disappears.^ 
If,  however,  we  consider  the  different  categories  of  delinquents, 
we  may  say  that  while  physical  factors  exert  an  almost  equal 
action  on  all,  the  anthropological  factors  prevail  in  the  criminal- 
born,  in  the  insane,  or  criminals  by  passion,  and  social  factors 
control  in  the  case  of  occasional  criminals  or  of  those  by  acquired 
habit.  This  shows,  as  I  have  said,  the  positive  aspect  of  the 
problem  of  statistics  on  the  movement  of  crime,  which  I  explic- 
itly put  in  my  "Studi  sulla  criminalita  in  Francia."  When  we 
watch  the  movement  of  crime  for  a  fixed  series  of  years  in  a  given 
country  with  a  general  rhythm  of  increase  and  decrease,  we  cannot 
but  think  that  it  depends  on  analogous,  constant,  and  accumu- 
lated variations  of  anthropological  and  physical  factors.  In  fact, 
while  the  absolute  figures  of  criminality  are  far  from  presenting 
the  stability,  so  much  exaggerated  by  Quetelet,  yet  the  propor- 
tional figures  for  anthropological  factors,  considering  the  part 
played  by  differences  of  age,  sex,  and  civil  status,  in  the  movement 
of  crime,  offer  very  slight  differences  even  for  long  periods.  As 
to  the  physical  factors,  if,  as  I  have  elsewhere  remarked,  we  may 
explain  the  sharp  oscillations  which  some  of  them  undergo  at 
determined  epochs,  it  is  nevertheless  evident  that  neither  climate, 
the  disposition  of  the  soil,  atmospheric  conditions,  the  succession 
of  the  seasons,  nor  the  annual  temperature  have  in  the  last  fifty 
years  been  subject  to  so  considerable  and  constant  changes  that 
they  can  be  even  remotely  considered  in  the  continual  increase  of 
criminality  and  the  ever-rising  tide  of  crime  which  we  have  noted 
in  certain  European  countries.    Therefore  the  social  factors,  these 

^  We  should  therefore  consider  as  inexact  Tarde's  observation  in  "Bribes  de 
statistique  Americaine,"  where  he  says  that  the  anthropological  and  physical  fac- 
tors only  exercise  an  impulsive  action  towards  an  indeterminate  form  of  activity 
while  the  social  factors  direct  that  activity  and  are  in  consequence  the  true  deter- 
minants. All  that  there  is  of  truth  in  this  idea,  I  had  stated  in  advance  of  Tarde 
in  my  third  edition,  i.  e.  that  the  social  medium  gives  the  form  to  crime  which  has 
its  basis  in  the  anthropological  factor. 

We  may  also  say  of  the  observation  of  a  few  other  writers,  to  the  effect  that 
the  social  factors  tend  to  predominance  as  civilization  advances  over  the  physical 
and  anthropological,  FouiUee,  "La  psychologic  du  peuple  frangais"  (Paris,  1898), 
p.  22,  that  this  assertion  is  exact  if  taken  in  a  relative  sense  and  without  pretending 
to  exclude  the  coaction  of  biological  and  telluric  factors. 


194  DATA  OF  CRIMINAL  STATISTICS  [§  135 

"other  causes,"  as  Tarde  says,  "more  or  less  easy  of  extirpation 
but  to  which  sufficient  attention  is  not  paid,"  are  responsible  for 
the  general  advance  of  criminaUty,  and  for  this  there  are  other 
reasons.  First:  The  variations  which  have  been  or  which  can 
be  verified  in  certain  anthropological  factors  such  as  the  different 
part  played  by  age  and  sex  in  crime  and  the  more  or  less  restricted 
hberty  of  explosion  permitted  to  anti-social  tendencies,  whether 
congenital  or  due  to  mental  alienation,  themselves  depend  upon 
social  factors;  for  example  on  the  institutions  for  the  protection  of 
abandoned  children,  on  child  labor,  on  the  participation  of  women 
in  external  and  commercial  life,  on  the  preventive  and  repressive 
precautions  taken  to  isolate  dangerous  persons  and  so  on.  These 
variations  are  an  indirect  effect  of  these  very  social  factors. 
Second;  Social  factors  predominate  in  occasional  delinquency  and 
in  acquired  habitual  crime,  and  as  the  latter  furnish  the  largest 
contingent  in  the  total  of  criminality,  it  is  clear  that  the  social 
factors  contribute  the  greatest  part  in  the  rise  and  fall  of  crime  in 
a  long  period  of  years.  So  true  is  this  that,  as  we  shall  see,  while 
the  gravest  misdeeds  (particularly  against  the  person,  that  is 
those  which  especially  represent  congenital  crime  or  are  caused 
by  mental  alienation)  offer  a  really  extraordinary  rhythmic  regu- 
larity with  slight  increase  and  decrease,  —  the  general  move- 
ment of  delinquency  takes  its  appearance  from  the  less  grave  but 
more  numerous  offenses  against  property,  persons,  and  public 
order,  and  from  those  which  have  rather  an  occasional  character, 
which  are,  as  it  were,  microbes  of  the  criminal  world  and  which 
more  directly  depend  on  social  environment.  If,  therefore,  social 
factors  play  the  greatest  part  in  the  general  increase  or  decrease 
of  criminality,  that  is,  the  factors  which  can  be  modified  and  cor- 
rected more  easily  than  the  others  by  legislative  action,  we  see 
on  this  point  also  another  obvious  benefit  of  the  positive  school; 
since  this  school,  thanks  to  the  data  of  criminal  statistics,  has  shed 
light  upon  the  practical  side  of  the  criminal  problem.^ 

*  It  is  remarkable  that  since  the  expression  of  these  words  which  were  used 
already  in  my  2d  edition  (1884),  Puglia  should  have  been  able  to  declare  that  ac- 
cording to  me,  "the  changes  in  the  social  medium  have  but  a  very  feeble  and 
sometimes  insignificant  efficacy  in  the  repression  of  criminal  tendencies."  Risor- 
gimento  e  avvenire  della  scienza  criminale,"  p.  28.  It  is  evident  that  the  criti- 
cism is  without  any  justification. 


CHAPTER  III 

PERIODIC  MOVEMENT  OF  CRIME 

General  data  on  periodical  movement  of  crime  in  Europe. 

§  136.  The  Periodical  Movement  of  Crime. 

After  these  preliminary  remarks,^  we  must  glance  at  the 
general  data  of  the  periodical  movement  of  crime  in  the  several 
countries  of  Europe,  from  which  I  have  been  able  to  draw  the 
most  complete  abstracts  of  official  statistics:  these  I  have  summed 
up  in  the  numerical  table  and  tableau  found  at  the  end  of  the 
volume.^  As  I  have  no  intention  of  making  any  comparative 
statistics  but  only  of  noting  the  general  advance  of  criminality, 
this  data,  not  always  comparable  between  one  country  and 
another,  but  homogeneous  in  each  series  of  the  same  country, 
suffices  to  indicate  certain  facts,  especially  with  the  aid  of  the 
diagram.  The  general  phenomenon,  which  it  notes  at  the  first 
glance,  in  the  countries  studied,  is  the  relatively  stationary  con- 
dition of  grave  crimes  and  the  constant  increase  of  lesser  crimes 
at  the  same  time,  especiaUy  in  the  countries  where  the  statis- 
tical series  are  longest  as  France,  England,  and  Belgium.  No  doubt 
this  phenomenon  is  in  large  part  due  to  the  successive  accumu- 
lation, in  cases  of  petty  delinquency,  of  violations  of  special  laws 
which  in  every  country  have  been  built  up  on  the  primitive 
foundation  of  the  criminal  code;  yet  it  is  also,  to  a  certain  extent, 
an  indication  of  a  real  transformation  of  criminal  activity  dur- 
ing the  last  century.  This  transformation,  substituting  fraud 
for  violence,  bourgeois  offenses  against  property  for  the  attacks 
on  the  person  of  the  Middle  Ages,  has  reached  the  point  where 
it  attenuates  the  intensity  while  it  at  the  same  time  spreads  the 
area  of  crime.     This  amounts  to  saying  that  the  general  char- 

*  In  the  Italian  editions  I  have  more  fully  examined  Italian  statistics:  they  are 
reduced  to  the  same  proportions  as  those  of  other  coimtries. 

*  For  Prussia  I  have  taken  the  figures  given  by  Starke,  "Verbrechen  und  Ver- 
brecher  in  Preussen,"  for  Russia  those  of  Tarnowsky,  "La  delinquenza  et  la  vita 
sociale  in  Russia,"  in  the  Riv.  Ital.  Soc.  (July,  1898),  and  A.  A.  C.  (September, 
1898). 

195 


196  DATA  OF  CRIMINAL  STATISTICS  [§  137 

acter  of  the  evolution  of  crime  in  the  last  hundred  years  consists, 
in  part,  in  the  progressive  substitution  of  forms  of  fraudulent 
for  forms  of  violent  crimes;  and,  in  part,  in  the  decrease  or  sta- 
tionary position  of  natural  crime  in  comparison  with  the  increase, 
—  whether  real  (by  real  growth)  or  formal  (by  multiplication  of 
special  prohibitive  laws) — which  has  occurred  in  legal  delinquency 
of  a  conventional  character.  Another  thing  that  is  common  to 
the  countries  studied  is  in  that  which  is  called  high  criminality 
("haute  criminaHte,"  —  felony)  while  the  serious  attempts 
against  property  show  a  noteworthy  decrease  (in  France,  England, 
Belgium,  Germany,  and  Ireland).  On  the  contrary  the  serious 
attempts  against  the  person  show  a  more  constant  advance  or 
remain  stationary  as  in  France  and  Belgium,  or  become  more 
mmierous,  as  in  England  and  Germany  where  they  have  increased 
to  an  even  greater  degree.  If  this  phenomenon,  however,  does 
correspond  in  the  case  of  crimes  against  persons  to  real  condi- 
tions of  criminal  activity  and  at  the  same  time  to  the  increase 
of  population,  —  on  the  contrary,  for  crimes  against  property 
(not  to  mention  the  real  transformation  of  violent  crimes  into 
tricky  and  fraudulent  offenses  occasioned  by  the  considerable 
augmentation  of  moveable  property),  it  is  for  the  greater  part 
only  the  apparent  effect  of  an  artificial  displacement  of  judicial 
jm-isdiction  due  to  what  is  called  the  "correctionalization"  of 
crimes. 

§  137.  Crime  as  Denounced. 

Let  us  now  reach  a  summary  view  of  the  principal  data 
furnished  by  criminal  statistics  of  each  country.  It  should  be 
premised  that  in  order  to  determine  the  physiognomy  of  the  prog- 
ress of  crime,  the  first  and  characteristic  data  is  to  be  sought  in 
the  lines  of  the  crimes  brought  into  the  district  attorney's  office. 
In  reahty,  the  lines  of  individuals  condemned  by  varying  degrees 
of  jurisdiction,  although  they  represent  surer  judicial  data,  have 
a  less  exact  and  less  unquestioned  value  in  a  statistical  sense. 
This  is  not  because  the  number  of  persons  tried  and  convicted 
(legal  crime)  does  not  represent  all  the  crimes  committed  (real 
crime)  or  denounced  (apparent  crime)  in  the  year  in  which  they 
are  tried.  It  is  principally  because  this  number  is  exposed  to  dis- 
turbing influences  which  may  change  its  relation  to  actual  crim- 
inaUty:  while  the  latter  is  much  closer  related  and  much  more 
dependent,  in  the  annual  periods  and  in  the  effective  number,  on 


§  138]  PERIODIC  MOVEMENT  OF  CRIME  197 

the  condition  of  apparent  or  denounced  crime.  It  is  true  that 
in  the  figures  of  denounced  crimes  there  may  enter  as  a  disturb- 
ing element  a  greater  or  a  lesser  tendency  of  the  population  to 
denounce  criminal  acts  or  acts  believed  to  be  such.  Even  if  this 
tendency  varies  much  in  different  nations  and  thus  adds  to  the 
difficulty  of  international  comparisons,  especially  in  some  crimes 

—  it  is  nevertheless  evident  that  in  the  same  country  it  varies 
less  from  year  to  year  than  the  activity  and  competence  of  the 
courts.^ 

§  138.  Periodical  Growth  of  Crime. 

Now  two  conclusions  which  are  evident  spring  from  an  exam- 
ination of  the  proportional  figures  for  the  general  growth  of 
crime  in  Italy.  This  criminaHty  —  until  1890  presenting  a  sym- 
metrical arrangement  of  quite  regular  periodic  oscillations  around 
a  maximum,  determined  in  1880,  —  has  continuously  undergone 
a  very  considerable  growth  since  1890.  This  almost  symmetrical 
rise  and  fall  of  Italian  criminaHty  with  its  period  of  about  five 
years  certainly  does  not  indicate  a  constant  law  of  periodical 
rhythm  (in  evidence  of  this  it  did  not  continue  during  the  last 
five  years);  but  still  considering  it  as  mere  empirical  and  transi- 
tory data  it  is  none  the  less  interesting  since  it  serves  as  an  ex- 
planatory criterion  of  the  second  and  more  essential  conclusion 
on  the  periodical  movement  of  crime  in  Italy.  It  is  even  more 
interesting,  in  my  opinion,  because  of  the  interpretation  of  which 
it  is  susceptible.  There  is  an  approximately  constant  law  which 
we  note  in  the  crime  of  all  countries  whereby  there  is  an  alter- 
nation in  the  annual  movement  of  crimes  against  property  with 
the  movement  of  those  against  the  person:  as  the  one  increases 

—  the  other  decreases.  This  is  because  the  most  efficient  and 
most  variable  general  factors  (abundance  of  food  and  mildness 
of  climate)  which  decrease  attempts  against  property  increase 
the  number  of  violent  and  sexual  crimes :  Attacks  on  prop- 
erty being  much  more  numerous  than  crimes  against  the  per- 
son contribute  more  in  fixing  the  level  of  annual  delinquency.^ 

^  See  Ferri,  "Studi  sulla  criminalita  in  Francia,"  in  the  volume  "La  negazione 
del  libero  arbitrio  ed  altri  saggi"  (Turin,  1900). 

^  Ferri,  "Das  Verbrechen  in  seiner  Abhangigkeit  von  dem  jahrlichen  Tempera- 
turwechsel"  (Berlin,  1882);  "Variations  thermometriques  et  criminalite,"  in  the 
volume  of  essays,  "Saggi"  (Turin,  1900).  One  can  understand  that  this  statis- 
tical law  of  opposite  movements  in  crimes  against  property  and  crimes  against 
the  person  in  consequence  of  abundance  of  crops  and  of  annual  temperature  is 
not  an  absolute  eternal  law;   it,  like  all  of  the  laws  of  statistics  and  sociology,  is 


198  DATA  OF  CRIMINAL  STATISTICS  [§  139 

Thus,  before  and  after  1880,  the  chief  and  principal  causes  were 
the  periods  of  abundance  or  of  economic  crises  and  of  annual  vari- 
ations of  temperature,  which  are  grouped  about  the  coldest  winter 
and  the  agricultural  crisis  (indicated  by  the  highest  price  of 
wheat)  which  occurred  in  1880.  In  the  following  years  we  ob- 
serve that  there  was  a  mild  mean  temperature  and  abundant 
harvests;  only  to  find  again  in  1886,  and  for  several  years,  severer 
winters  and  an  acute  economic  crisis.^ 

§  139.  Permanent  Increase  in  Crime. 

The  tendency  or  general  direction  of  these  particular  oscilla- 
tions (which  in  1892  seemed  to  move  towards  the  increase  rather 
than  the  decrease  of  crime)  has  effectively  been  fixed  in  the  last 
ten  years  in  the  direction  of  a  constant  increase.  We  can  demon- 
strate, and  with  convincing  evidence  in  the  longer  series, 
that  in  the  periodical  movement  of  crime  in  every  country  of 
Europe,  distinction  should  be  made  between  more  or  less  pro- 
longed particular  oscillations  of  increase  or  decrease  and  the 
permanent  direction  of  the  general  movement.  The  former  de- 
pends on  the  annual  disturbances  of  a  particular  factor,  more 
controlling  and  more  variable  in  the  most  numerous  crimes,  for 
example,  success  or  failure  of  the  crops,  annual  variations  of 
temperature,  and  industrial  or  political  crises  (thus,  the  amnes- 
ties of  1876,  1878,  1893,  1895,  etc.,  influenced  the  number  of 
convicts  in  prison).  The  others  are  determined  (ehminating  the 
purely  artificial  class  of  new  infractions  created  by  new  statutes) 
by  the  fundamental  conditions,  either  physical  or  social,  of  every 
country,  since,  in  the  general  lines  of  crime  in  every  country,  the 
artificial  factors  of  judicial  activity  and  legislative  innovation 
act  concurrently  with  natural  factors.    This  is  exactly  why  there 

merely  relative  to  the  epoch  when  observed  and,  hence,  to  the  existing  civiliza- 
tion. In  a  more  advanced  phase  of  civilization  where  every  man  will  be  assured 
really  human  conditions  of  life  and  where  the  sharp  alternative  of  extreme  misery 
and  relative  comfort  will  be  suppressed,  this  very  increase  of  attacks  on  life  and 
virtue  which  are  now  almost  always  in  compensation  with  the  decrease  of  attacks 
on  property,  can  itself  be  suppressed.  I  have  never  given  any  other  effect,  either 
theoretical  or  practical,  to  this  law  of  statistics. 

*  Of  this  see  the  clear  proofs  in  Rossi,  "Influenza  della  temperatura  e  dell* 
alimentazione  nel  movimento  della  criminalita  italiana,"  A.  P.  (1885),  p.  501 
(with  a  chart),  and  "Actes  du  premier  congres  d'anthropologie  criminelle"  (Rome, 
(1886),  p.  296,  and  in  Fomasari,  "La  criminalita  e  le  vicende  economiche  d'ltalia 
dal  1873  al  1890"  (Turin,  1894).  The  procurators  in  their  inaugural  addresses 
indicate  these  causes.  See  Ferri,  "Relatione  sui  discorsi  inaugurali,"  in  the  "Atti 
della  commissione  statistica  giudiziale"  (Rome,  1886),  pp.  224  et  seq. 


§  140]  PERIODIC  MOVEMENT  OF  CRIME  199 

was  so  much  discussion  in  Italy  a  few  years  ago  on  the  ques- 
tion of  the  definition  of  crime.  A  further  reason  is  that,  especially 
on  this  point,  the  question  has  a  range  not  merely  theoretical  but 
practical  and  controversial  in  the  domain  of  science  and  pohtics. 

§  140.  Increase  of  Crime ;  Classicism  and  Positivism. 

In  the  debates  between  the  classical  and  positive  schools, 
credit  has  frequently  been  given  to  the  classical  school  and  its 
doctrinism  for  the  increase  of  crime  and  for  what  Holtzendorff 
called  "the  bankruptcy  of  the  penal  system  hither  apphed." 
In  turn,  the  classical  criminalists  have  tried  to  deny  this  increase 
and  bankruptcy  in  order  to  avoid  judgment  of  the  social  utihty 
of  their  abstract  theories  by  their  effects.  In  the  political  domain 
where  the  prejudice  still  rules  that  the  life  of  society  in  its  ground- 
lines  depends  rather  upon  the  artificial  action  of  such  or  such 
a  government  than  upon  its  natural  factors,  which  for  the  great 
part  are  foreign  and  superior  to  such  artificial  action,  —  the 
increase  of  crime  has  often  been  asserted  or  denied  according  to 
the  inspiration  of  oflScial  optimism  or  of  the  pessimism  of  the 
opposition.^  Hence,  it  was  only  in  1889  when  the  fact  could  be 
no  longer  dissimulated  that  there  was  an  official  recognition  in 
Italy  of  the  increase  of  crime.  I  had  been  right  in  maintaining 
from  the  beginning  that  the  diminutions  observed  from  1881 
to  1884  could  not  be  taken  as  indicative  of  the  amehoration  of 
Italian  criminality  since  it  was  only  the  extraordinary  recrudes- 
cence of  1880  which  made  the  less  deplorable  situation  of  the 
following  years  appear  good.  Of  course,  in  a  high  fever  a  drop 
of  a  single  degree  of  temperature  is  encouraging;  yet  it  was  an 
illusion  to  accept  mere  annual  and  transitory  oscillations  as  a 
general  and  constant  tendency.    A  glance  at  a  few  of  the  longer 

*  It  is  curious  to  observe  how  every  once  in  a  while  such  discussions  are  re- 
newed in  all  countries.  Thus,  in  France  after  1840,  there  was  much  controversy 
on  whether  there  had  been  increase  or  decrease  of  delinquency  since  1826.  There 
were  optimists  like  Dufau,  Berenger,  Berryat,  Legoyt,  who  argued  a  decrease, 
and  there  were  the  so-called  pessimists,  but  who  were  really  unbiased  observers, 
and  these  maintained  that  there  was  an  increase.  Of  these  were  Metz,  Dupin, 
Chassan,  Mesnard,  and  Fayet  who  cites  them  in  his  essays,  "Sur  les  progres  de  la 
criminalite  en  France,"  in  the  "Journal  des  dconomistes"  (January,  1846). 

For  Italy  in  1864,  see  the  same  discussion  cited  by  Carrara,  "Opuscoli"  Vol, 
425. 

In  like  manner  a  few  years  ago  there  was  much  discussion  of  crime  in  Eng- 
land, which  as  we  shall  presently  see,  tended  to  decrease.  So  also  in  Germany, 
where  it  continued  to  increase.  See  Bosco,  "La  delinquenza  in  alcuni  Stati 
d'Europa."  pp.  56-115. 


200  DATA  OF  CRIMINAL  STATISTICS  [§  141 

series  (for  example,  of  delicts  in  France,  England,  and  Belgium, 
of  crimes  and  delicts  in  Prussia)  suflSces  to  show  that  the  descend- 
ing oscillations,  even  when  persistent  for  several  consecutive 
years,  do  not  prevent  the  ascending  oscillations  from  beginning 
again  in  the  following  years,  in  spite  of  the  illusory  expectation 
of  a  lasting  improvement,  so  often  expressed,  in  their  annual 
reports,  by  the  ministers  of  justice  on  the  very  occasions  of  these 
passing  oscillations.  I  shall  not  urge  the  very  forcible  indication 
of  an  inverse  tendency  to  the  increase  of  crime  which  is  given  by 
the  higher  definite  figure  of  imprisoned  convicts  in  Italy,  nor 
shall  I  insist  upon  that  other  painful  symptom  common  to  Italy 
and  other  European  countries,  which  is  the  constant  proportional 
increase  of  delinquents  who  are  under  age.  Only  too  soon  have 
the  facts  come  to  my  support,  with  the  incessant  increase  from 
1886  to  1897  not  only  in  denounced  offenses,  but  in  crimes  brought 
to  trial. ^ 

If  we  take  a  look  at  the  other  European  states  we  have  the 
following  comparative  figures: 

§  141.  Comparative  Tables. 

1826-28  to  1893-95 
'  Causes    tried    as    contraventions,  —  police 

regulations from  100  to  398 

France  •  Delicts from  100  to  418  \  70 

Crimes  against  the  person from  100  to    93    years 

.  Crimes  against  property from  100  to    32 

(Persons  tried  by  tribunals  for  correctional-  1  . 

ized  crimes  against  the  person from  100  to  109  I  „„ 
Persons  tried  by  tribunals  for  correctional-  [ 

ized  crimes  against  property from  100  to  162  j 

18JlfO-i2  to  1893-95 

'  Persons  tried  by  tribunals  for  delicts from  100  to  310  ' 

Persons  tried  by  Assizes  for  crimes  against  in 

Belgium  \      the  person from  100  to    75    56 

Persons  tried  by  Assizes  for  crimes  against  years 

property from  100  to    19  . 

^  For  the  sole  purpose  that  the  reader  may  smile  at  the  courtesy  and  intelli- 
gence of  some  of  the  adversaries  of  the  positive  school,  I  borrow  from  the  "Re- 
vista  penale"  (Dec.,  1884),  p.  503  (and  moreover  it  continues  its  criticisms  \\nth  the 
same  courtesy  if  with  little  seriousness  at  bottom),  the  following  passage  relative 
to  the  statistics  of  Italian  crime  for  the  period  from  1879  to  1893;  "And  now 
that  the  neo-alchemists  of  penal  science  have  doted  on  the  famous  'rising  tide  of 
Italian  criminality,'  on  the  frightful  increase  of  crimes  in  Italy.  And  to  think  that 
certain  statistical  assertions  of  the  self-styled  positive  school  were  based  on  such  sta- 
tistical inductions!  May  these  incurable  pessimists  find  here  a  lesson  and  make 
more  serious  inquiries  before  pursuing  their  atavistic  lucubrations." 


§141] 


PERIODIC  MOVEMENT  OF  CRIME 


201 


England  ' 


Ireland 


1857-59  to  1893-95 
Persons  tried  "summarily"  for  delicts  and  1  in  30 

contraventions from  100  to  176  j  years 

1835-37  to  1893-95 
Persons  tried  as  criminals  for  crimes  against  ] 

the  person from  100  to  141  I  in  61 

Persons  tried  as  criminals  for  crimes  against  [  years 

property  and  against  the  currency from  100  to    52  J 

1861t-66  to  1893-95 
'Persons  tried  "summarily"  for  delicts  and 

contraventions from  100  to    87 

Persons  tried  as  criminals  for  crimes  against 

the  person from  100  to    50 

Persons  tried  as  criminals  for  crimes  against 

property  and  against  the  currency from  100  to    52 . 


m 
32 
years 


186A-56  to  1876-78 

(Prosecutions  for  contraventions  and  thefts  ]  in 

of  wood from  100  to  132  >  25 
Prosecutions  for  crimes  and  delicts from  100  to  134  J  years 

1881-84-  to  1891-93 
Persons   sentenced  for  crimes  and   delicts 

against  public  order from  100  to  126 

Persons   sentenced   for  crimes  and  delicts 

against  the  person from  100  to  139 

Persons   sentenced  for  crimes  and   delicts 

against  property from  100  to  112  . 

Crimes  of  public  officers  are  not  included:  these  averaged  1620  convictions 
per  year  from  1882  to  1886,  and  1535  convictions  from  1889  to  1893. 


Germany < 


m 
12 
years 


Cis-Leithan 
Austria 


Russia  ^ ' 


1867-69  to  1893-95 

Persons  convicted  of  crime from  100  to  116  1  in  29 

Persons  convicted  of  delicts from  100  to  620  /  years 

1874-76  to  1891-95 
Persons  convicted  of  contraventions,  from  100  to  173  in  22  years 

1874  to  1894 
Persons   convicted  'of  .crimes    against  the 

person from  100  to  245     in 

Persons  convicted  of  crimes  against  prop-  ■  11 

erty from  100  to    73     years 

Persons  convicted  of  other  delicts from  100  to  152  . 


*  For  the  thirty-three  jurisdictions  embraced  in  the  Courts  of  Appeals  of  St. 
Petersburg,  Moscow,  Kazan,  Saratov,  Karkov,  Odessa  with  about  sixty-seven 
million  inhabitants.  This  data  has  only  an  approximate  value  as  showing  the  crim- 
inality of  the  thirty-three  governments  comprised.  As  Tarnowsky  observes, 
Riv.  Ital.  Soc.  (July,  1898),  pp.  487  and  493,  aside  from  the  law  of  1882  which  trans- 
ferred burglary  in  uninhabited  houses  from  the  ordinary  courts  and  tribunals  to 
the  peace  magistrates,  the  figures  of  the  convictions  of  the  peace  magistrates  do 
not  include  all  the  cases  tried  before  them.  There  is  missing  also  all  the  decisions 
of  the  local  tribunals  of  peasants;  and,  indeed,  the  rural  population  in  Russia  forms 


202  DATA  OF  CRIMINAL  STATISTICS  [§  142 

1883-85  to  1891-93 

n         J  f  Persons  tried  for  delicts from  100  to    98 1  in  11 

\  Persons  tried  for  contraventions from  100  to  114  J  years 

§  142.  Increase  in  Contraventions  and  Increase  in  More  Serious  Crimes. 

The  most  constant  general  phenomenon  shown  by  this  data 
is  always  the  very  noticeable  increase  of  the  petty  legal  or  con- 
traventional  delinquency,  together  with  stationary  condition  or 
slighter  increase  of  the  more  serious  natural  criminality  (against 
the  person).  In  the  crimes  against  property  there  is  either  a  great 
decrease  (as  in  France,  Belgium,  England,  and  Russia)  or  a  lesser 
increase  (as  in  Germany).^  It  is,  however,  necessary  to  distin- 
guish, in  this  constant  fact,  the  simple  appearance  from  what 
truly  corresponds  with  reality.  On  one  hand  the  decrease  of 
serious  crimes  against  property  is  due  merely  to  a  change  of 
jurisdiction,  or,  that  is  to  say,  to  the  correctionaUzation  of  crimes. 
Here  the  usual  practice  of  magistrates  (as  in  France  and  Italy 
prior  to  1890)  or  the  law  itself  (as  in  England  in  1856  and  1879  — 
in  Belgium  in  1838  and  1849  —  in  Italy  through  the  dispositions 
made  for  the  application  of  the  Code  of  1890  which  have  sin- 
gularly restricted  the  functions  of  juries  —  in  Russia  through  the 
laws  of  1882  on  burglary  of  uninhabited  houses)  substitute  for 
the  aleatory  outcome  of  jmy  sentences,  punishments  less  harsh 
but  more  certain,  imposed  by  the  judges  of  the  ordinary  tri- 
bunals. In  crimes  against  the  person,  which  are  less  suscepti- 
ble of  correctionaUzation,  we  do  not  find  the  movement  towards 
diminution  very  notable.  In  Belgium  the  continual  increase 
of  correctionalized  crimes  bears  for  the  most  part  on  crimes 
against  property.  Likewise  in  the  great  increase  in  the  trivial 
legal  deUcts  (not  to  mention  the  number  of  poHce  agents  which 
has  also  increased)  a  large  part  is  attributable  simply  to  the  crea- 
tion of  new  delicts  and  contraventions  by  one  law  after  another. 
Thus  (and  I  cannot  dwell  on  the  proofs  in  detail),  in  France  the 

about  eighty  per  cent,  of  the  total  population.  On  criminality  in  Russia,  see  also 
Bosco,  "La  statistica  giudica  e  rinstituto  intemazionale  di  state  a  Pietroburgo," 
§111,  in  the  "Atti  de  commissione  della  statistica  giudizia"  (Rome,  1898.  Sess. 
December,  1897),  p.  270;  Orchansky,  "Les  criminels  russes  et  la  thterie  de  Lom- 
broso."  in  the  A.  P.  (1898),  p.  14. 

'  For  Spain  the  statistics  of  1894  are  evidently  erroneous  and  the  later  are 
unworthy  of  confidence;   hence  I  stopped  at  1893. 

*  On  the  increase  of  crime  in  Germany,  see  an  article  by  von  Mayr  in  the  "  AU- 
gemeine  Zeitung,"  Supplement  (February,  1895),  and  "Revue  p^nitentiaire" 
(1895).  p.  436;  Beunecke,  "Statistik,"  in  the  Z.  G.  S.  (1897),  XVII,  737. 


§  142]  PERIODIC  MOVEMENT  OF  CRIME  203 

law  of  1832  on  violations  of  surveillance,  the  law  of  1844  on  de- 
licts relative  to  railways,  the  law  of  1849  relative  to  the  expulsion 
of  foreign  refugees,  the  law  of  1873  on  drunkenness,  the  law  of  1874 
on  the  conscription  of  horses:  in  Germany,  the  laws  for  the  pro- 
tection of  workmen,  laws  relative  to  repose  on  holidays,  etc.,  have 
contributed  for  record  new  contraventions  and  delicts.  It  is  true, 
as  Joly  ^  remarks,  that  other  laws  since  1825  have  suppressed  other 
crimes  or  have  reduced  the  number  of  cases  through  less  rigorous 
provisions;  yet  it  is  evident  that  the  new  dehcts  give  a  much  more 
considerable  total  than  that  of  the  few  dehcts  which  have  been 
suppressed  or  diminished.  And  hence  it  cannot  be  denied  (as 
Joly  does  deny)  that  in  the  total  increase  of  French  criminahty, 
the  artificial  element  due  to  new  judicial  provisions  enters.  Never- 
theless, in  certain  categories  of  the  most  frequent  misdeeds,  such 
as  robbery,  criminal  and  felonious  assaults,  a  great  intrinsic 
increase  in  France  has  really  occurred  in  the  last  sixty  years.  Also 
in  England  the  increase  of  dehcts  summarily  tried  by  reason  of 
the  law  of  1856  (to  which  corresponds  the  decrease  in  crime 
against  property)  is  largely  due,  as  Levy  says,^  to  the  new  viola- 
tions introduced  by  a  mass  of  local  laws,  especially  the  Education 
Act  of  1873,  against  which  more  than  forty  thousand  infrac- 
tions were  recorded  in  1878,  more  than  sixty-five  thousand  in 
1886,  and  more  than  sixty- two  thousand  in  1894.  Relative  to  this 
lesser  delinquency  in  England  (which  is  so  numerous  because  it 
also  includes  violations  similar  to  the  "contraventions"  of  the 
Italian,  French,  Belgian,  Austrian,  Prussian,  and  Spanish  sys- 
tems and  this  number  is  very  considerable)  it  should  be  clearly 
noted  that  the  increase  of  seventy-six  per  cent,  in  thirty  years 
is  due  less  to  real  and  serious  crimes  than  to  trivial  transgres- 
sions. This  indicates  a  distinct  difference  between  the  advance 
of  crime  in  England  and  its  progress  in  Continental  Europe. 

If  we  analyse  the  total  of  offenses  in  England  in  which  there 
were  summary  trials,  we  find  that  the  greatest  increase  occurs 
in  the  violations  of  laws  against  drunkenness  (82,196  in  1861, 
189,697  in  1882,  183,221  in  1885,  165,139  in  1886)  and  in  viola- 
tions of  local  laws,  —  while  real  delicts  against  the  person  (as- 
saults) and  against  property  (stealing,  larceny,  malicious  offenses) 
do  not  show  so  important  an  increment.     On  the  contrary,  in 

^  Joly,  "La  France  criminelle,"  p.  13. 

*  Levi,  "A  Survey  of  Indictable  and  Summary  Jurisdictional  Offenses,"  in 
"Journal  of  Statistics  of  Sociology"  (September,  1880),  p.  424. 


204  DATA  OF  CRIMINAL  STATISTICS  [§  142 

France  true  delicts  from  blows  and  wounds,  or  robbery,  show  a 
greater  increase,  without  regard  to  legislative  innovations.  Con- 
sulting the  statistical  abstracts  such  as  I  have  at  present,  we  find: 

TABLE 

1861-63  to  1879-81 

n  f  Persons  tried  "summarily"  for  assaults from  100  to  lOiJ 

\  For  stealing,  larceny,  malicious  offenses from  100  to  110 

(Affairs  tried  by  the  tribunals  for  blows  and  voluntary 
woundings from  100  to  1S4 
For  larceny from  100  to  116 

1874-78  to  1889-93 

(Persons  tried  "sunmiarily"  for  assaults  (blows  and 
wounds) from  100  to    79 
For   larceny from  100  to  116 

1871-76  to  1888-92 
Individuals  tried   by  the  correctional   tribimab,    for 

woimds  and  voluntary  blows from  100  to  1S8 

For  larceny from  100  to  121 

In  accordance  with  the  summaries  given  above,  England  would 
seem  to  show  a  decrease  not  only  in  the  total  of  lesser  delinquen- 
cies and  more  especially  in  the  lesser  deUcts  against  the  person 
but  also  a  sHghter  increase  in  deUcts  against  property  than  is 
found  in  France  and  the  other  continental  countries.^    This  fact, 

*  An  exception  should  be  made  of  the  Canton  of  Geneva,  where  abo,  thanks 
to  the  influence  of  many  works  of  social  preservation  (especially  for  abandoned 
children),  crime  is  diminishing.  See  GuSnoud,  "La  criminalite  a  Geneve  au  XIX*^ 
siecle"  (Geneva,  1891),  pp.  34  et  seq. 

To  the  decrease  of  crime  in  England,  which  Morrison  (who  does  not  distinguish 
between  natural  and  legal  crime)  declares  is  neither  so  certain  nor  so  general  as 
others  have  claimed  (and  I  had  pointed  it  out  already  in  my  3d  edition  in  noting 
as  well  the  increase  of  the  graver  offenses  against  the  person,  although  it  did  not 
correspond  with  the  increase  in  population),  the  attention  of  statisticians  and 
sociologists  has  recentiy  been  turned.  See  Morrison,  "Crime  and  its  Causes," 
Chap.  I;  "Preface  to  the  Criminal  Sociology  of  E.  Ferri"  (London,  1895),  pp.  6-7; 
"Lavoro  e  criminalita  in  Inghilterra,"  S.  P.  (15  Jan.  1893),  p.  43;  "Delinquenti  e 
carceri  in  Inghilterra,"  id.  (July,  1895),  where  Morrison  finally  makes  distinction 
between  slight  criminaUty  and  serious  crime. 

Grosvenor,  "Statistics  of  the  Abatement  of  Crime  in  England,"  J.  S.  S.  (Sep- 
tember, 1890);  Griffiths,  "La  lutte  centre  le  crime  en  Angleterre,"  in  the  "Rev. 
pinit."  (May,  1893);  Fomasari,  " La  criminalita  e  la  vicende  economiche  in  Italia" 
(Turin,  1894),  Chap.  IV;  Joly,  "La  diminution  du  crime  en  Angleterre,"  in  the 
"Revue  de  Paris"  (December,  1894);  Troup,  "Introduction  to  Criminal  Statistics 
for  1883  (which  inaugurated  a  new  series  of  judicial  statistics),  (London,  1895),  pp. 
71  et  seq.;  Tarde,  "La  diminution  du  crime  en  Angleterre,"  A.  A.  C.  (March,  1895); 
Aschrott,  "Strafen  und  Gefangnisswesen  in  England  wahrend  des  letzten  Jahr- 
zehnts,"  Z.  G.  S.  (1896),  p.  1;  Bruni,  "La  diminuzione  del  delitto  in  Inghilterra," 


§  142]  PERIODIC  MOVEMENT  OF  CRIME  205 

ever  bearing  in  mind  the  increase  of  the  more  serious  crimes  against 
the  person  in  England  (contemporaneous  with  the  great  increase 
of  population  which  has  more  than  doubled  in  sixty-three  years), 
tends  to  prove  the  beneficent  power  of  English  institutions  against 
certain  social  factors  of  crime  —  abandoned  infancy,  pauperism, 
etc.,  —  and  particularly  of  the  improvement  in  the  condition  of 
the  laboring  classes,^  in  spite  of  the  development  of  economic 
activity,  which  certainly  has  not  been  less  in  England  than  in 
France  or  other  European  countries.  All  of  this  confirms  our 
point  of  view  on  the  factors  of  criminaUty  and  on  the  proper 
measures  of  social  preservation,  even  in  the  existing  economic 
phase  of  society  and  is  contrary  to  Poletti's  theory.  The  ascending 
movement  of  crime  is  a  phenomenon  shared  by  America  also. 
An  increase  from  one  hundred  to  one  hundred  and  twenty-eight 
in  general  crime  has  been  observed  in  Mexico  from  1871  to  1885, 
and  in  Brazil,  at  Buenos  Aires,  and  in  the  United  States.  Al- 
though in  the  latter  country  it  is  difficult  to  obtain  complete 
annual  data  which  are  reliable,  there  was,  according  to  White, 
one  convict  for  every  one  thousand  three  hundred  and  forty-two 
inhabitants  in  1850;  one  for  every  one  thousand  six  hundred  and 
forty-seven  in  1860;  one  for  every  one  thousand  one  hundred  and 
seventy-one  in  1870;    one  for  every  eight  hundred  and  fifty-five 

A.  P.  (1896),  p.  166;  Ferrero,  "Le  cronache  di  Newgate  e  la  criminalita  in  Inghil- 
terra,"  id.  (1897),  p.  193;  Bodio,  "Sul  movimento  della  delinquenza  in  Italia  e  con- 
ferenci  intemazionale,"  A.  C.  S.  G.  (Rome,  1898;  Session  of  May,  1897),  p.  195; 
1897,  p.  203;  1895  (1st  Session),  p.  231;  Rostand,  "Pourquoi  la  criminalite  monte 
en  France  et  baisse  en  Angleterre";  Tarnowsky,  "La  diminuzione  della  criminality 
in  Inghilterra,"  in  the  "Giom.  del  Min.  di  giust.  Russo"  (October,  1897);  Gold- 
schmidt,  "Statistique  criminale  anglaise  pour  1896,"  in  the  "Rev.  p6nit."  (Aug., 
1898),  p.  1134.  As  to  France  we  observe,  also,  that  in  1895  there  was  a  decrease 
in  both  crimes  and  delicts.  But,  unfortunately,  I  do  not  think  that  this  annual 
oscillation  any  more  than  those  of  1850-59-60,  1869, 1877-78. 1882  and  1893  (and 
similar  transitory  years  are  found  in  the  statistical  series  of  every  country)  permit 
us  to  affirm  that  there  has  been  an  actual  decrease  of  crime  as  the  Minister  of 
Justice  ("garde  des  Sceaux")  seems  to  believe  in  his  "Rapport  sur  la  Statistique 
criminelle  en  1895,"  "Journal  officiel"  (Paris,  9  Nov.,  1897),  and  as  others  think, 
among  whom  are:  Berard,  "La  criminalite  en  France  en  1895,"  in  the  A.  A.  C. 
(1898) ;  CrSmieux,  "Administration  de  la  justice  criminelle  en  1895,"  in  the  "Revue 
penitentiaire "  (Dec.  1897,  p.  1358);  YvernSs,  "La  diminution  de  la  criminaUte 
en  France,"  in  the  "Journal  Societe  Savante"  (Paris,  May,  1898),  p.  152. 

^  Following  Tugan-Baronowsky,  "Die  sozialen  Wirkungen  der  Handelskrisen 
in  England,"  in  the  "  Archiv  flir  soziale  Gesetzgebung  und  Statistik"  (1898),  p.  19, 
Bosco,  "La  delinquenza  in  alcuni  Stati  d'Europa,"  §  IV,  rightly  infers  and  proves 
from  statistics  that  the  controlling  influence  in  the  decrease  of  English  crime 
should  be  attributed  to  the  better  living  conditions  (material  and,  hence,  moral) 
of  the  most  numerous  classes. 


206  DATA  OF  CRIMINAL  STATISTICS  [§  143 

in  1880;  and  one  for  every  seven  hundred  and  fifty-seven  in  1890. 
However,  it  appears  that  in  about  one-half  of  the  area  of  the  United 
States  (according  to  the  last  census)  it  increased,  while  in  the 
other  half  it  decreased,  particularly  in  relation  to  the  increase  of 
population.  The  same  fact  occurred  in  certain  parts  of  Australia, 
as  in  New  South  Wales. 

§  143.  Increase  of  Population  a  Factor  in  the  Increase  of  Crime. 

The  essential  rule  in  the  increase  of  delinquency,  both  legal 
and  natural,  observable  in  continental  Europe,  belongs  to  dif- 
ferent causes  from  those  which  we  have  just  mentioned  and  which 
are  mere  statistical  appearances.  Abstracting  the  different  con- 
ditions of  social  environment,  the  most  general  and  constant 
cause  is  the  increase  of  population.  Using  the  figures  collected 
in  the  Introduction  to  the  volume  of  1883  on  the  movement  of 
civil  status  in  Italy,  reproduced  by  Levasseur  ^  and  supplemented 
by  more  recent  data,  we  find  for  the  periods  corresponding  to  those 
of  criminality,  the  following  proportional  increases  of  population 
in  the  various  countries  (with  the  exception  of  Ireland,  which  on 
account  of  heavy  emigration  shows  a  decrease) : 

TABLE 

Italy from  1873  (27,165,553)  to  1894  (30,818,248)  increase  40% 

France from  1826  (31,858,937)  to  1894  (38,380,000)  increase  20% 

Belgium from  1840  (  4,072,619)  to  1894  (  6,341,958)  increase  57% 

Phussla. from  1852  (21,046,984)  to  1878  (26,614,428)  increase  26  % 

Germany from  1882  (45,717,000)  to  1893  (50,778,000)  increase  10  % 

England from  1831  (13,896,797)  to  1894  (30,060,763)  increase  117% 

England from  1861  (20,066,224)  to  1894  (30,060,763)  increase  50% 

Ireland from  1861  (  5,798,967)  to  1894  (  4,600,599)  decrease    20% 

Cia-LEiTHAN,  Axis-    f 

TRLv \  from  1869  (20,217,531)  to  1894  (24,649,193)  increase  21  % 

Spain from  1883  (17,158,672)  to  1892  (17,938,151)  increase  4% 


This  increase  of  population  is  a  natural  and  inherent  cause  of 
the  increase  of  crime  by  increasing  the  number  of  relations,  of 
things,  and  of  persons  in  a  denser  population  on  the  same  territory 
and  especially  in  urban  centers.  It  should  not  be  forgotten,  how- 
ever, that  in  the  first  place  the  increase  of  population  only  oper- 
ates as  a  cause  for  the  increase  of  crime  when  not  neutralized  wholly 
or  partially  by  other  influences,  especially  social,  which  anticipate 

^  Levasseur,  "Statistique  de  la  superficie  et  de  la  population  des  contrees  de 
la  terre,"  I  part,  B.  I.  I.  S.  (Rome,  1886),  1,  3;  "Movimento  della  populazione  in 
alcuni  Stati  d'Europa  e  d' America,"  id.  (Rome),  X  1,  p.  1. 


§  143]  PERIODIC  MOVEMENT  OF  CRIME  207 

or  moderate  crime.  An  example  is  England,  where  it  seems  that 
the  increase  of  population  is  accompanied  by  an  increase  of 
crime,  not  when  there  is  a  normal  increase  of  the  population  hving 
on  a  definite  area,  but  when  the  number  of  inhabitants  suddenly 
increases  through  some  rapid  change  in  economic  conditions 
(forms  of  labor)  in  a  given  territory.  In  the  second  place,  as 
Rossi  says,^  we  fall  into  inaccuracies  when  we  are  content  to 
compare  the  percentage  of  increase  of  population  with  that  of 
the  increase  of  criminahty.  This  is  what  Bodio  does  in  his  report 
on  Italian  delinquency  from  1873  to  1883,  when  he  concludes 
that  in  those  eleven  years,  since  population  grew  seven  and  a 
half  per  cent.,  "crime  might  have  grown  seven  and  a  half  per 
cent,  in  the  same  period  without  on  that  account  being  able  to 
say  that  it  had  actually  increased."  ^  As  the  increase  of  popu- 
lation in  Italy  is  solely  due  to  the  excess  of  births  over  deaths 
(emigration  being  much  greater  than  immigration)  births  augment 
population  by  a  contingent  which  adds  nothing  to  crime,  at  least 
actively,  in  the  first  ten  or  fifteen  years,  while  death  removes  indi- 
viduals of  all  ages,  and  mostly  those  of  the  age  when  man  can  com- 
mit and  in  fact  does  commit  crime.^  It  is  impossible  here  to  enter 
into  a  detailed  study  of  other  countries  and  I  shall  content  myself 
with  noting  a  few  significant  facts  shown  by  the  graphical  chart. 
We  see  there,  for  example,  the  same  influence  of  the  great  famine 
of  1846-1847  on  crimes  against  property  in  France  and  Belgium; 
the  sharp  oscillations  of  crime  in  Ireland  reflecting  the  politico- 
social  agitations  in  that  country;  the  analogy  in  the  progress  of 
crime  in  France  and  Prussia  where  the  period  of  ten  years' 
calm  preceding  the  war  of  1870-1871  (remarkable  in  both  coun- 
tries by  an  extraordinary  decrease  of  statistical  records),  was  suc- 
ceeded by  a  period  of  considerable  and  continuous  increase  of 

^  Rossi,  "Le  recenti  statistiche  giudiziarie  penali  italiane,"  A.  P.  (1889),  X, 
293. 

*  Bodio,  A.  C.  S.  G.  (Rome,  1886),  p.  32,  and  to  the  same  effect  in  subsequent 
annual  reports. 

'  An  application  of  this  idea  has  been  made  by  Mayr,  "Rapporto  della  cri- 
minalita  colla  composizione  della  popolazione  in  Germania,"  in  the  A.  Z.  (SuppL, 
Dec,  1895).  He  maintains  that  the  increase  of  crime  in  Germany  after  1888  was 
due  to  the  Increase  of  births,  which  occurred  regularly  after  the  war  of  1870,  and, 
hence,  to  the  greater  number  of  minors  of  eighteen  or  more  who  were  active  in  life 
from  1888  on.  See  "Rev.  penit."  (1898),  p.  142.  The  increase  of  crime  in  Germany 
is,  however,  more  the  reflex  of  economic  conditions,  either  from  more  acute  crises 
increased  congestion,  greater  number  of  women  and  children  in  industry,  and  the 
consequent  direct  or  indirect  degeneracy  which  is  its  inevitable  effect.  See  Bosco, 
"La  delinquenza  in  alcuni  Stati  d'Europa,"  §5. 


208  DATA  OF  CRIMINAL  STATISTICS  [§  143 

crimes  which  proceeded  from  the  reaction  of  an  unfavorable 
economic  condition  and  an  acute  crisis,  the  efltects  of  which  are 
shown,  for  example,  in  France,  Grermany,  and  Italy,  by  an  in- 
creased death  rate.  These  facts  in  their  salient  lines  demonstrate 
how  closely  crime  depends  on  the  entirety  of  its  multiple  factors. 
And  now  putting  aside  the  detailed  studies  on  some  of  the  social 
factors  of  deUnquency  which  are  susceptible  of  a  statistical  expres- 
sion and  of  which  I  have  made  exposition  in  my  "Studi  suUa 
criminalita  in  Francia,"  such  as  the  increase  of  police  agents,  the 
abundance  or  scarcity  of  the  harvests  of  cereals  and  of  wine,  the 
progress  of  alcohoUsm,  family  relations,  the  increase  of  moveable 
property,  the  growth  of  civil  justice,  commercial  and  industrial 
crises,  the  rate  of  wages,  the  annual  improvement  in  the  general 
conditions  of  living  and  the  like,  in  spite  of  the  great  spread  of 
education  and  of  institutions  of  providence  and  charity  —  we 
must  leave  these  general  data  of  criminal  statistics  in  order  to 
draw  from  them  by  induction  some  theoretical  and  practical  con- 
clusions of  criminal  sociology. 


CHAPTER  IV 

LAW  OF  CRIMINAL  SATURATION 

Law  of  criminal  saturation.     Slight  efBciency  of  punishment;  historical,  statisti- 
cal, and  psychological  proofs. 

§  144.  Law  of  Criminal  Saturation. 

These  general  summaries  show  how  crime,  whether  natural  or 
legal,  continues  to  increase  in  the  aggregate  with  more  or  less 
of  an  annual  variation  which  tends  to  accumulate,  in  a  long 
period,  into  a  series  of  real  criminal  waves.  From  this  we  see 
that  the  level  of  crime  each  year  is  determined  by  the  different 
conditions  of  the  physical  and  social  environment  combined  with 
the  congenital  tendencies  and  accidental  impulses  of  individuals, 
in  accordance  with  a  law,  which,  in  analogy  to  the  law  of  chem- 
istry, I  have  called  the  law  of  criminal  saturation.  As  a  given 
volume  of  water  at  a  definite  temperature  will  dissolve  a  fixed 
quantity  of  chemical  substance  and  not  an  atom  more  or  less; 
so  in  a  given  social  environment  with  definite  individual  and 
physical  conditions,  a  fixed  number  of  delicts,  no  more  and  no 
less,  can  be  committed.^ 

§  145.  Annual  Criminal  Variations. 

Our  ignorance  of  a  multitude  of  physical  and  psychical  laws 
and  of  numberless  concurrent  circumstances  of  fact  prevents  us 
from  forecasting  with  precision  the  level  of  criminality;  yet  it 
is  none  the  less  the  necessary  and  inevitable  effect  of  a  given  phys- 
ical and  social  environment.  Statistics  prove  that  the  variations 
of  this  environment  are  always  accompanied  by  relative  and 
proportionate  variations  in  criminality.  In  France,  for  example 
(and  this  observation  applies  to  every  country  which  has  a  long 

^  This  law  of  social  saturation  has  recently  been  applied  by  Durkheim  to  the 
phenomenon  of  suicide  of  which  he  writes:  "Every  society  has,  at  every  moment  of 
its  history,  a  definite  aptitude  for  suicide.  The  relative  intensity  of  this  aptitude 
is  measured  by  taking  the  ratio  between  the  total  number  of  voluntary  deaths  and 
the  population  of  both  sexes  and  all  ages.  We  shall  call  this  numerical  data  the 
death  rate  by  suicide  appropriate  to  the  society  under  observation."  Durkheim, 
"Le  suicide,"  p.  10. 

209 


210  DATA  OF  CRIMINAL  STATISTICS  [§  145 

series  of  data),  the  figures  of  crimes  against  the  person  vary  but 
Httle  in  sixty-two  years.  It  is  the  same  in  England  and  in  Bel- 
gium because  the  respective  environments  are  more  stable,  and 
the  congenital  dispositions  of  individuals  and  the  human  passions 
cannot  vary  so  often  or  so  violently,  unless  there  be  meteoric  or 
extraordinary  social  disturbances.  I  have  been  able  to  prove 
that  the  greatest  variations  in  crimes  against  the  person  in  France 
may  be  either  at  times  of  political  revolution  or  in  years  when 
the  summers  have  been  hottest  and  when  there  has  been  the 
greatest  consumption  of  meat,  cereals,  and  wine,  for  example  in 
the  years  of  the  great  criminal  increase  of  1849-1852.^  For 
lesser  dehcts  of  a  more  casual  kind  against  the  person  I  have 
demonstrated  that  assaults,  for  example,  follow  particularly  in 
their  annual  oscillations  the  greater  or  lesser  yield  of  the  vintage, 
and  also  that  in  their  monthly  variations  they  show  an  increase 
in  the  months  nearest  the  harvest,  in  spite  of  the  constant  de- 
crease of  other  crimes  against  the  person  after  the  month  of 
June.  On  the  other  hand,  the  statistics  of  crimes  against  prop- 
erty, and  especially  of  simple  deUcts,  show  strong  oscillations  by 
reason  of  the  lesser  stability  of  their  special  medium,  that  is, 
the  economic  situation,  which  is  always,  so  to  speak,  in  a  state  of 
unstable  equilibrium,  as  in  years  of  famine  and  poor  crops,  com- 
mercial, financial,  and  industrial  crises,  etc.  The  influence  of 
the  physical  medium  also  makes  itself  felt;  for  I  have  proven 
elsewhere  that  crimes  against  property  show  sudden  increases 
in  years  when  the  winter  is  severe  and  corresponding  decreases 
in  years  when  the  temperature  is  milder.'*  This  correspondence 
between  the  most  general,  powerful,  and  variable  of  the  physical 
and  social  factors  of  crime  and  the  most  characteristic  manifes- 
tations of  crime,  such  as  robberies,  assaults,  and  rapes,  is  so  close 

*  Ferri,  "Socialismo  e  criminalitA,"  Chap.  II. 

*  "Das  Verbrechen  in  seiner  Abhangigkeit  von  dem  jahrlichen  Temperatur- 
wechsel";  "Variations  thermometriques  et  criminalite."  As  to  the  influence  of 
harvests  and  of  the  price  of  cereals  on  crimes  against  property,  we  should  call 
attention  (besides  the  well-known  chart  of  Mayr,  "Rapporto  della  criminalitll 
colla  compozione  della  popolazion  in  Germania,"  p.  557)  to  a  diagram  by  May- 
hew  and  de  Binky,  "The  Criminal  Prisons  of  London"  (London,  1863),  p.  451, 
which  compares  the  annual  price  of  wheat  and  the  number  of  delinquents  in  pro- 
portion to  population  from  1834  to  1849.  A  study  of  the  principal  categories  of 
crime  has  been  made  from  the  same  point  of  view  from  1870  to  1886  by  Fxdd, 
"Der  Einfluss  der  Lebensmittelpreise  auf  die  Bewegung  dei*  strafbaren  Handlun- 
gen"  (Mayence,  1881),  and  by  Rossi  for  Italy  from  1875  to  1883,  A.  P.  (1885), 
p.  501,  and  more  fully  by  Fornasari,  "La  criminaUt4  e  la  vicende  economiche  in 
Italia  dal  1873  al  1890." 


§§  146,  147]        LAW  OF  CRIMINAL  SATURATION  211 

and  constant  that  in  my  researches  on  criminality  in  France,  cover- 
ing fifty  years,  whenever  I  fomid  some  exceptional  oscillation 
Ln  these  delicts,  I  foresaw  at  once  that  in  the  history  of  the  same 
year  there  would  be,  for  example,  an  agricultural  or  financial 
crisis  or  a  political  revolution,  and,  in  the  meteorological  statis- 
tics, a  colder  winter,  a  hotter  summer,  and  the  Hke.  With  noth- 
ing but  the  plain  line  of  a  diagram  of  criminal  statistics,  I  was 
able  to  reconstruct  in  their  most  salient  traits  the  historical 
vicissitudes  of  a  whole  country,  thus  confirming  the  actuality 
of  these  laws  of  criminal  saturation  by  psychological  experiment. 

§  146.  Reflex  and  Complementary  Crime. 

Further,  it  may  be  said  that,  as  in  chemistry,  an  exceptional 
supersaturation  may  occur  through  an  increase  of  temperature 
of  the  solvent  liquid,  so,  also,  in  criminal  sociology,  beyond  the 
regular  and  constant  saturation,  there  is  observable  at  times  an 
actual  criminal  supersaturation  due  to  extraordinary  conditions 
of  the  social  environment.  It  should  be  observed  first  of  all  that 
the  principal  and  typical  delinquency  has  its  reflex  delinquency, 
since  the  increase  of  the  graver  or  more  frequent  crimes  of  itself 
involves,  as  a  natural  consequence,  a  greater  number  of  riots  and 
outrages  against  pubhc  officers,  and  a  greater  number  of  per- 
juries, wrongs,  violations  of  surveillance,  and  escapes.  Add  to  this 
that  certain  crimes  have  complementary  crimes  which  at  first 
are  the  consequences  of  crime  but  in  their  turn  become  new 
stimulants  of  the  crimes  from  which  they  result.  Thus,  when 
thefts  are  numerous  more  stolen  property  is  bought,  received, 
or  hidden;  when  there  are  more  homicides  and  assaults  there  is 
increased  carrying  of  concealed  weapons.  When  there  are  more 
adulteries,  there  are  more  insults  and  duels,  and  vice  versa. 

§  147.  Criminal  Supersaturation. 

There  is  also,  in  an  exceptional  and  transitory  way,  actual 
criminal  supersaturation,  properly  speaking.  Ireland  and  Russia 
afford  conspicuous  examples,  but  the  same  fact  occurs  in  all 
countries,  especially  in  America  during  the  periods  of  election. 
In  France,  in  the  period  preceding  and  following  the  Coup  d'fitat 
of  1851,  the  crime  of  concealing  delinquents,  which  in  every  other 
four-year  period  from  1826  to  1881  did  not  exceed  fifty,  rose  to 
the  number  of  two  hundred  and  thirty-nine  in  the  four  years 
(1850  to  1853,  incl.).     So,  also,  in  Italy  we  note  a  remarkable 


212  DATA  OF  CRIMINAL  STATISTICS  [§  148 

increase  of  prosecutions  for  crimes  against  the  safety  of  the  State 
and  public  order  in  1898  and  1899,  clearly  a  reflection  of  the 
economic,  political,  and  social  crises  which  that  country  under- 
went. Once  more,  in  the  serious  famine  of  1847,  the  crime  of 
stealing  grain  in  France  reached  the  total  of  forty-two  in  a  single 
year,  while  in  fifty-five  other  years,  taken  all  together,  it  scarcely 
reached  a  total  of  seventy-five.  Furthermore,  it  is  a  well-known 
fact  that  in  years  when  provisions  are  dear  and  the  winters  hard, 
many  thefts  and  petty  crimes  are  committed  in  order  to  obtain 
food  and  shelter  in  prison,  —  a  fact  which  is  often  confirmed 
by  the  Department  of  Justice.  I  have  further  observed  in 
France  that  some  other  crimes  against  property,  on  the  contrary, 
decrease  in  years  of  famine  in  consequence  of  an  analogous 
psychological  movement  which  entrains  what  may  be  called  a 
statistical  paradox.  As  the  crop  pests  (ordium,  phylloxera)  are 
more  effective  than  the  severity  of  punishment  in  decreasing  the 
number  of  assaults,  so,  too,  is  famine  more  effective  than  the 
bars  or  the  dogs  released  in  the  prison  yards  in  preventing 
the  escape  of  convicts.  In  famine  years,  there  are  characteristic 
reductions  due  to  the  advantage  to  the  convict  in  being  harbored 
and  fed  by  the  State.  A  similar  fact  which  gives  a  new  psycho- 
logical confirmation  to  our  remark  is  that  in  1847,  when  there 
was  an  extraordinary  increase  of  all  crimes  against  property,  there 
was  a  marked  decrease  only  in  crimes  of  theft  and  breach  of  trust 
committed  by  servants.  This  was  precisely  because  if  there  was 
anything  better  than  penalties  to  deter  them  it  was  the  fear  of 
losing  their  support  by  their  master  dming  the  economic  crisis.^ 
Chaussinand,  confirming  my  observations,  adds  that  in  the  face  of 
this  crisis  there  was  a  notable  decrease  in  the  number  of  resistances 
to  arrest  "because  thieves  and  vagabonds  then  prefer  to  be  arrested 
in  order  to  avoid  the  misery  which  prevails  outside  the  prisons."  * 

§  148.   Criminal  Supersaturation  and  Regularity  of  Crime. 

The  law  of  criminal   supersaturation   has  two  principal  con- 
sequences in  its  bearing  on  criminal  sociology.     The  first  is  the 

*  Here  are  some  of  the  figures: 

France  {Court  of  Assize) 18U  18^5  m6  m7 

Crimes  against  property 3.767  3,396  3.581  4.235 

Breach  of  trust  by  servants 136  128  168  104 

Thefts  by  servants 1,001  874  924  896 

*  Chaussinand,  "fitude  sur  la  statistique  criminelle  en  France  "  (Lyons,  1881), 
p.  18. 


§  148]  LAW  OF  CRIMINAL  SATURATION  213 

inaccuracy  of  speaking  of  the  mechanical  regularity  of  criminal 
phenomena  which  (since  Quetelet)  has  been  much  exaggerated. 
Thousands  of  times  his  famous  dictum  has  been  cited:  "There 
is  one  tax  which  is  paid  each  year  more  punctually  than  the 
others  and  it  is  the  tax  of  crime."  In  consequence,  there  has 
developed  a  general  belief  in  the  possibility  of  calculating  in 
advance  how  many  individuals  would  steep  their  hands  in  the 
blood  of  their  fellow-men,  how  many  poisoners,  how  many  forgers 
there  woidd  be,  because  "crimes  are  annually  reproduced  in 
equal  number,  with  the  same  penalties  and  in  the  same  propor- 
tions." ^  For  example  we  hear  it  repeated  by  statisticians,  that, 
from  year  to  year  crimes  against  the  person  vary  at  most  by  a 
twenty-fifth,  and  crimes  against  property,  by  a  fiftieth,  ^  or  again, 
that  there  is  a  law  whereby  the  variations  of  dehct  do  not  exceed 
one-tenth.'  This  opinion,  which  originated  with  Quetelet  and 
the  others  because  they  observed  only  the  advance  of  the  most 
serious  crimes  and  only  during  a  very  short  series  of  years,  has 
already  been  refuted  in  part  by  Maury  himself,  by  Rhenisch,^ 
and  more  explicitly  by  Aberdare,^  Mayr,^  and  Massedaglia.^ 
For,  if  the  level  of  crime  is  determined  in  a  necessary  manner  by 
physio-psychic  conditions  of  population  and  by  the  conditions  of 
the  physical  and  social  environment,  how  can  it  remain  constant 
and  unaltered  notwithstanding  continual  and  frequently  con- 
siderable variations  of  these  very  conditions?  There  will  be 
found  a  constant  ratio  between  a  given  population  living  in  a 
given  environment  and  the  number  of  crimes.  This  is  what  I 
call  the  law  of  criminal  saturation.  For  this  very  reason,  the 
contingent  of  crime  will  never  be  equal  from  one  year  to  another. 
There  will  be  as  Massedaglia  (and  after  him  Poletti)  has  said,  a 

1  QuStdet,  "Du  syst^me  social"  (Paris,  1841),  1,  I,  §  II,  Chap.  II;  "Physique 
sociale,"  2d  ed.  (Brussels,  1869),  1,  IV,  §  8.  And  among  others.  Buckle,  "History 
of  Civilization  in  England,"  I,  p.  23,  etc.;  Wagner,  "Die  GesetzmSssigkeit  in  den 
scheinbar  willkliriichen  menschlichen  Handlungen"  (Hamburg,  1864),  p.  44. 

*  Maury,  "Du  mouvement  moral  de  la  society,"  R.  D.  M.  (September,  1860). 
'  Poletti,  "Teoria  della  tutela  penale"  (1878),  Cap.  VI;   Appendix  to  the  sec- 
ond edition  of  Lombroso's  "L'uomo  delinquente." 

*  Rhenisch,  in  the  "Zeitschrift  flir  Philosophic  und  philosophische  Kritik," 
cited  by  Block,  "Traite  theorique  et  pratique  de  statistique,"  2d  ed.,  p.  119 
(Paris,  1886). 

»  Aberdare,  "H  delitto  e  la  pena  in  Inghilterra,"  R.  C.  (1876),  p.  204. 

*  Mayr,  "La  statistica  e  la  vita  sociale,"  2d  ed.  (Turin,  1886),  p.  554. 

^  Messedaglia,  " La  statistica  della  criminality"  (Rome,  1879),  p.  44  and  note 
3;  and  to  the  same  effect,  Minzloff,  "fitudes  sur  la  criminalite,"  P.  P.  (September, 
December,  1880). 


214  DATA  OF  CRIMINAL  STATISTICS  [§  149 

dynamic  but  not  a  static  regularity.  In  this  sense  we  may  admit 
the  conclusion  of  Drobisch,  that  "all  regularity  shown  by  moral 
statistics  in  arbitrary  human  acts  is  not  derived  from  a  law  of 
fate,  a  destiny  which  exacts  blind  submission  and  is  accomplished 
by  an  irresistible  force,  but  is  the  product  of  constant  causes 
which  are  yet  susceptible  of  modification."  ^  This  is  what  we 
determinists  maintain  in  the  following  declaration :  on  the  one  hand, 
human  phenomena,  and  hence  criminal  phenomena,  depend  on 
natural  causes  but  not  through  a  necessity  of  natiu^,  not  through 
fatalism  or  predestination;  on  the  other  hand,  it  is  possible  to 
modify  the  effects  by  modifying  the  very  causes.  This  is  con- 
ceded by  Quetelet  himself  where  he  says:  "If  we  change  the 
social  order,  we  shall  see  an  immediate  variation  of  the  facts 
which  were  produced  in  so  constant  a  manner.  Statisticians 
should  find  out  whether  these  changes  have  been  useful  or  harm- 
ful. These  studies  show  at  all  events  the  importance  of  the  mis- 
sion of  the  legislator  and  his  share  of  responsibihty  in  all  the 
phenomena  of  the  social  order."  ^ 

§  149.   Criminal  Supersattiration  and  Punishment. 

The  second  consequence  of  this  law  of  criminal  saturation 
(and  it  is  of  great  theoretical  and  practical  importance)  is  that 
it  scientifically  proves  that  punishments,  in  which  until  now,  in 
spite  of  a  few  purely  platonic  declarations,  the  best  remedies 
against  crime  have  persistently  been  seen,  have  none  of  the 
efficacy  attributed  to  them.  Delicts  increase  and  decrease  through 
a  sum  of  causes  which  are  very  different  from  the  penalties  so 
easily  promulgated  by  legislators  and  applied  by  judges  and 
jailors.  History  affords  striking  examples  of  this.  In  the  corrupt 
society  of  the  Roman  Empire  it  was  in  vain  that  laws  were  en- 
acted to  smite  "gladio  ultore  et  exquisitis  poenis"^  those  guilty 
of  ceUbacy,  adultery,  incest,  and  crimes  against  nature.  Dion 
Cassius  *  says  that  in  Rome  alone  as  a  consequence  of  the  law  of 
Septimus  Severus  more  than  three  thousand  prosecutions  for 
adultery  were  immediately  begun.  Something  quite  different, 
however,  was  needful  to  cure  the  diseased  condition  of  society, 

*  Drobisch,  "Moralische  Statistik  und  die  menschliche  Willensfreiheit." 

*  QuSielet,  "Physique  sociale,"  Book  IV,  Sec.  Ill,  §  8.  Hence,  Fidd,  "Einfluss 
der  Kriminalstatistik,"  in  the  "ArchivfUrStrafrechtswissenschaft"  (1885),  wrong- 
fully reproaches  the  Italian  positive  school  with  following  "the  old  mechanic 
theories  of  criminal  statistics." 

'  Tit.  IX,  Lib.  IX,  Code.  *  Hist.  Rom..  LXXVL  16. 


§  149]  LAW  OF  CRIMINAL  SATURATION  215 

as  is  proved  by  the  fact  that  the  most  drastic  laws  against  the 
same  crimes  were  reenacted  down  to  the  time  of  Justinian  with- 
out result.  Accordingly  the  lex  Scatenia  against  infamous  carnal 
crimes.  Gibbon  ^  tells  us,  "fell  into  desuetude  with  the  lapse  of 
years  and  by  reason  of  the  multitude  of  the  guilty,"  But  this 
example  does  not  teach  those  who,  for  instance  in  France,  would 
combat  celibacy  with  only  the  fear  of  penalties.  It  is  a  fact  that 
from  the  Middle  Ages  down  to  our  days  the  softening  of  manners 
has  in  large  part  concurred  in  making  less  frequent  in  Europe 
the  bloody  assaults  which  were  formerly  numerous  enough,  in 
spite  of  the  atrocious  penalties  of  the  times.  Du  Boys  ^  chides 
Celtes  for  his  simplicity,  when,  after  making  a  chart  of  the  fright- 
ful tortures  of  his  time  (a.d.  1400-1500)  in  Germany,  he  shows 
astonishment  that  these  tortures  failed  to  prevent  the  multi- 
plication of  crime.  Imperial  Rome  flattered  itself  that  it  would 
stifle  Christianity  with  the  most  atrocious  penalties,  but,  on  the 
contrary,  these  tortures  seemed  to  feed  its  source,  which  cer- 
tainly did  not  fear  the  rigor  of  the  laws.  In  like  manner  Catholic 
Europe  in  the  Middle  Ages  thought  to  extinguish  religious  reform 
by  persecutions  which  were  increased  under,  the  disguise  of  penal 
justice.  The  contrary  effect,  however,  was  obtained.  If  Prot- 
estantism has  not  taken  deep  root  in  France,  Italy,  and  Spain, 
the  reasons  are  ethnic  and  social,  and  it  is  not  because  of  slaughter 
and  massacres.  The  proof  of  this  is  that  it  has  made  no  greater 
strides  since  penalties  aimed  at  religious  beliefs  have  been  entirely 
taken  away.'     The  spread  of  general  education  has  caused  the 

^  Gibbon,  "Declioe  and  Fall  of  the  Roman  Empire,"  Chap.  XLIV. 

*  Du  Boys,  "Histoire  du  droit  criminel  des  peuples  modemes"  (Paris,  1858), 
Vol.  2,  Lib.  Ill,  Chap.  XXVI,  p.  613.  It  is  enough  to  recall  the  vivisection  of  per- 
sons condemned  to  death  in  the  sixteenth  century  of  which  Andreozzi  has  given 
instances  in  Tuscany,  in  his  work:  "Leggi  penali  degU  antichi  Cinesi"  (Florence, 
1878),  pp.  43  et  seq.  Also  Romiti,  "Catalogo  ragionato  del  Museo  anatomico  di 
Siena"  (Sienna,  1883),  Introduction,  pp.  8  et  seq.,  and  "Ancora  suU'  anatomia  in 
Siena  nel  XVsecolo,"  in  the  "Notizie  anatomiche"  (Sienna,  1883). 

'  In  the  Ught  of  the  doctrine  commonly  called  historical  materialism,  and 
which  I  think  more  exact  to  call  economic  determinism  (according  to  which,  moral, 
juridical,  political,  and  social  phenomena  in  general  are  determined,  directly  or 
indirectly,  by  the  economic  conditions  of  each  society  at  each  moment  of  its  evolu- 
tion), one  sees  that  the  irrepressible  expansion  of  the  Christian  movement,  and 
afterwards  of  the  Protestant  Reformation,  was  determined,  for  Christianity,  by 
the  economic  evolution  which  brought  about  the  decline  of  servitude  and  which 
was,  in  consequence,  an  expansive  force  (superior  to  all  the  violence  of  a  sangui- 
nary repression)  for  a  new  religion  preaching  the  brotherhood  of  all  men.  In  the 
same  way,  the  Reformation  movement  was  but  a  religious  reflection  of  the  economic 
emancipation  of  the   bourgeois  class  in  central  Europe,  and  had,  for  the  same 


216  DATA  OF  CRIMINAL  STATISTICS  [§  150 

disappearance  of  the  crimes  of  Black  Art  and  Sorcery,  notwith- 
standing that  they  withstood  the  most  barbarous  punishments, 
both  in  antiquity  and  in  the  Middle  Ages.  Preceding  and  follow- 
ing the  crusades,  the  upheaval  of  economic  conditions  and  the 
spirit  of  adventure  in  Germany  in  the  sixteenth  century  resulted 
in  an  enormous  increase  in  the  number  of  vagabonds.  "After  the 
Thirty  Years'  War,  this  dreadful  crisis  was  a  plague,  —  a  crisis, 
which  suspended,  so  to  speak,  all  regular  life  in  Germany.  In 
spite  of  lash,  brand,  and  gibbet,  the  number  of  vagabonds  swelled 
every  day  and  an  ancient  chronicler  says  there  was  fear  lest  the 
wood  should  be  lacking  to  build  gallows  and  the  hemp  to  twist 
ropes."  ^  It  was  in  vain  that  the  nose,  the  tongue,  and  the  lips 
were  cut  for  blasphemies,  everywhere  threatened  and  punished. 
In  France  from  Louis  IX  to  Louis  XV,  blasphemies  abounded, 
but  now,  on  the  contrary,  they  steadily  diminish  in  spite  of 
impunity  in  civilized  coimtries.  Yet  where  coarseness  of  language 
persists,  the  law  can  do  nothing,  even  when  it  does  not  fall  into 
disuse.'^  Mittermayer  ^  remarks  that,  if  in  England  and  Scotland 
there  are  less  false  testimonies,  less  perjuries,  less  riots  and  resist- 
ances than  in  Ireland  and  on  the  continent  of  Europe,  it  is  largely 
due  to  the  difference  of  national  character,  which  should  be  the 
principal  element  of  criminal  life  by  reason  of  its  hereditary  and 
incessant  influence  both  on  individuals  and  on  institutions.  Even 
without  recourse  to  statistics,  therefore,  we  know  that  delicts 
and  penalties  move  in  different  spheres,  which  are  excentric, 
so  to  speak,  to  each  other.  But  when  statistics  in  addition  come 
to  confirm  the  teachings  of  history,  there  can  be  no  further  doubt 
of  the  almost  complete  inadequacy  of  punishments  against  crimes. 

§  160.  Legislative  Repression  and  the  Increase  in  Crime. 

We  may  look  to  statistics  for  a  striking  proof  of  this  truth  by 
studying  the  course  of  repression  in  France  during  sixty-six  years, 
as  I  have  studied  it  in  my  "Studi,"  and  which  I  shall  complete 

reason,  an  expansive  force  that  could  not  be  overcome  by  persecutions  or  con- 
demnations. The  same  phenomenon  is  going  on  under  our  eyes  wath  respect  to 
socialism  which  represents  the  economic  emancipation  of  the  proletariat  and  a 
higher  phase  of  economic  and,  hence,  of  moral  and  social  evolution. 

^  Reich,  "L'evoluzione  penitenziaria  in  Sassonia,"  reviewed  by  Riviere  in  the 
"Rev.  penit."  (1896),  p.  609. 

*  As  has  been  seen  in  Tuscany  until  1890  where  the  penalties  of  Article  186 
were  scarcely  ever  inflicted. 

*  Mittermayer,  "Traite  de  la  procedure  crirainelle  en  Angleterre,  en  Scosae  et 
dans  TAmerique  du  Nord"  (Paris,  1868),  §  4,  p.  53. 


§  151]  LAW  OF  CRIMINAL  SATURATION  217 

with  the  aid  of  data  relating  to  these  last  years.  When  repres- 
sion of  crimes  is  spoken  of,  we  should  first  of  all  distinguish  the 
repression  which  depends  on  the  general  character  of  the  penal 
legislation,  animated  by  more  or  less  severity,  and  that  which  is 
manifested  in  the  application  of  the  law  in  the  work  of  judges 
who,  more  or  less  rigorously,  fulfill  the  social  function  of  its  ad- 
ministration. As  to  legislation,  it  is  certainly  not  to  any  decrease 
in  the  penalties  that  one  may  attribute  the  increase  of  crime 
in  France.  The  legislative  variations  which  have  occurred  in  that 
country,  especially  in  1832  and  1863,  with  the  revisions  of  the 
Penal  Code,  have  introduced  only  partial  moderations  of  penal- 
ties. This  was  done  with  the  intent  (effective  according  to  the 
annual  reports  of  criminal  statistics)  of  strengthening  judicial 
repression  by  facilitating  the  infliction  of  less  excessive  punish- 
ments, in  virtue  of  the  constant  psychological  law  which  makes 
the  pronouncing  of  an  excessive  sentence  repulsive  even  to  judges 
themselves.  It  is  well  known  that  if  there  is  a  Penal  Code  in 
Europe  which  does  not  sin  by  excess  of  indulgence,  it  is  the  French, 
which  so  strongly  retains  the  severity  of  the  Napoleonic  epoch  in 
which  it  was  promulgated;  without  considering  that  in  certain 
crimes  (such  as  violations  and  attempts  on  chastity  which  never- 
theless show  an  extraordinary  increase  in  France)  the  penalties 
have  been  increased  by  successive  laws.  The  same  is  true  of 
blackmail  which  becomes  more  and  more  frequent,  as  Joly  ^ 
observes,  in  spite  of  the  more  severe  penalties  established  by 
the  law  of  1863. 

§  161.   Judicial  Repression  and  the  Increase  in  Crime. 

The  question,  therefore,  leads  to  judicial  repression,  whose 
general  movement  in  the  last  half-century  requires  consideration, 
since  it  is  this  movement  which  obviously  exerts,  in  the  sphere 
of  the  penal  system,  the  most  efficacious  action  on  criminality. 
For  laws  exert  a  real  action  only  when  applied  with  more  or  less 
rigor,  since  in  the  social  classes  which  furnish  the  largest  con- 
tingent of  crime,  the  laws  are  unknown  before  their  practical 
application.  And  the  truly  defensive  function,  which  specially 
anticipates  the  repetition  of  crimes  by  the  same  delinquent, 
depends  upon  the  application  of  the  laws  in  practice.  Hence, 
criminal  sociology  concedes  little  importance  to  the  arguments, 
which  many  theoretical  jurists  base  solely  on  a  psychological 
^  Joly,  "Le  crime,"  p.  122. 


218  DATA  OF  CRIMINAL  STATISTICS  [§  152 

error  when  they  suppose  that  the  deUnquent  classes  are  interested 
in  the  revision  of  a  penal  code,  just  as  the  least  numerous  and 
best  educated  classes  of  society  might  do.  It  is  well  in  this  con- 
nection to  recall,  also,  the  error  of  those  who,  like  Garofalo  for 
example,  think  that  the  aboUtion  of  the  death  penalty  would 
produce  regrettable  consequences,  not  so  much  in  itself  but  be- 
cause the  delinquent  classes  would  know  of  it.^  They  fail  to 
perceive  that  murderers  pay  no  attention  to  statutes  as  printed 
but  consider  merely  whether  the  judges  condemn  to  death  and 
above  all,  whether  the  hangmen  can  really  execute  their  sentences. 
Now  such  a  result  has  not  happened  in  Italy  for  many  years, 
although  capital  punishment  was  provided  for  in  the  Code. 
Experience  has  now  shown  once  more  that  criminal  phenomena 
are  independent  of  penal  laws;  for,  we  have  seen  that  in  Italy 
the  sole  crime  that  has  actually  decreased  in  late  years  is  murder, 
for  which  the  punishment  of  death  was  abolished  by  law  in  1890. 

§  162.  Severity  and  Leniency  in  Judicial  Repression. 

The  greater  or  lesser  severity  in  judicial  repression  is  the  result 
of  two  elements:  1st,  the  number  of  persons  aquitted  in  propor- 
tion to  the  niunber  of  persons  charged  with  crime.  2d,  the  dif- 
ferent proportions  of  grave  penalties  compared  with  the  total 
number  of  persons  sentenced.  In  fact,  in  an  abstract  way,  the 
percentage  of  acquittals  should  not  indicate  more  nor  less  severity 
in  repression,  since  conviction  or  acquittal  should  be  nothing  but 
a  simple  declaration  of  certainty  and  hence  only  reflect  the  greater 
or  less  value  of  the  evidence  adduced.  In  reality  it  must  be 
conceded  that  the  increase  in  the  percentage  of  persons  convicted 
is  inseparably  related  to  the  severity  of  the  judges,  especially 
the  ordinary  judges  who  exhibit  this  severity  either  in  showing 
themselves  less  scrupulous  in  weighing  evidence  or  more  disposed 
to  admit  aggravating  circumstances,  and  hence  the  heaviest 
penalties.  An  example  of  this  is  the  extreme  rarity  of  acquit- 
tals in  trials  for  resisting  arrest.  Of  these  two  elements,  the  first 
is  certainly  the  more  important  on  account  of  the  psychological 
law  that  man  in  punishment,  as  in  any  kind  of  pain,  is  restrained 
more  by  the  certainty  than  by  the  gravity.  This  is  why  even  the 
classical  criminalists  have  rightly  maintained  that  a  mild  but 
certain  penalty  has  greater  eflBcacy  than  an  atrocious  punish- 
ment, which  leaves  a  chance  of  escai)e.  It  is,  nevertheless,  true 
^  Garofalo,  "Contro  la  corrente"  (Naples,  1888). 


§152] 


LAW  OF  CRIMINAL  SATURATION 


219 


that  they  carried  this  theory  to  excess  in  trying  to  obtain  for  all 
crimes  without  distinction  (even  for  those  committed  by  born 
and  habitual  criminals)  a  moderation  and  shortening  of  the  con- 
tinuous and  excessive  punishments  without  striving  also  to  ob- 
tain a  greater  certainty  through  reforms  of  procedure  and  judicial 
regulation.^     The  phenomenon  in  the  proportion  of  acquittals 

^  Now,  to  see  how  these  two  factors  behave  in  relation  to  general  criminality: 
I  began  by  dividing,  in  the  case  of  France,  the  series  1826-1895  into  periods  of  five 
years,  rejecting  the  two  years  187(K-71  as  abnormal  on  account  of  the  war,  and 
ending  the  ninth  period  with  1869  and  beginning  again  from  1871,  because  that 
year  inaugurated  a  new  era  of  political  and  social  organization  and  could  not  be 
compared  from  the  judicial  standpoint  with  the  preceding  years. 

After  the  determination,  for  each  period,  of  the  total  number  of  persons  tried 
and  acquitted  by  the  Courts  of  Assizes  and  by  the  Correctional  Tribunals,  I  found 
the  following  proportions: 


France 

Proportion  of  acquittals  to 
100  accused 

every 

Assizes 

Correctional  Tribunals 

Total 

I.  1826-30 

39 

31 

43 

II.   1831-35 

42 

28 

30 

III.   1836-40 

35 

22 

23 

IV.   1841-45 

32 

18 

19 

V.   1846-50 

26 

16 

17 

VI.   1851-55 

28 

12 

13 

VII.   1856-60 

24 

10 

7 

VIII.    1861-65 

24 

9 

6 

IX.   1866-69 

23 

17 

8 

X.   1872-76 

20 

6 

6 

XI.   1877-81 

23 

5 

6 

XII.   1882-86 

27 

6 

6 

XIII.   1887-91 

29 

5 

6 

XIV.    1892-95 

30 

5 

6 

From  this  table  it  is  clearly  evident  that  there  is  a  continual  increase  in  the 
proportionate  number  of  acquittals  as  well  in  the  Assizes  (except  for  the  last  de- 
cades) as  for  the  ordinary  Tribunals.  This  may  be  due  to  the  fact  that  the  magis- 
trates begin  the  prosecutions  with  greater  care,  but  it  in  any  event  indicates  an 
incontestable  tendency  towards  greater  judicial  severity  (which  nevertheless  has 
not  prevented  the  constant  growth  of  criminality).  For  this  constant  decrease  in 
the  indulgence  of  judges,  reasons  certainly  are  at  hand,  —  first  of  all,  in  the  personal 
tendencies  of  the  judges  chosen  in  different  ways  and  differently  disposed;  then 
in  the  political  revolutions  which  always  have  as  their  effect,  as  Quetelet  remarks, 
the  temporary  weakening  of  repression  only  to  make  it  more  severe  (as  is  seen  in 
periods  V  and  X  after  1848-52  and  1870-71);  and  finally,  in  legislative  changes. 
We  observe  in  the  figures  for  the  Assizes,  for  the  Tribunals,  and  in  the  total  a  marked 
decrease  for  the  period  III  due  to  the  law  of  1832,  which  reduced  certain  penalties 
and  introduced  for  the  first  time  general  extenuating  circumstances  (unconscious 
recognition  of  the  categories  of  delinquents  and  thereby  easily  lending  itself  to 
abuse)  and  aided  convictions.    On  the  one  hand,  the  disinclination  of  judges  to 


220  DATA  OF  CRIMINAL  STATISTICS  [§  152 

is  repeated  in  a  similar  phenomenon,  which,  while  it  relates  to 
the  certainty  of  evidence  and  to  the  discovery  of  the  authors 
pronounce  excessive  sentences  was  obviated;  on  the  other  hand,  in  the  presence 
of  a  law  which  reduced  penalties,  there  arose  spontaneously  in  the  judges  a  psy- 
chological tendency  to  offset  this  moderation  by  a  greater  severity;  this  seems  to 
be  reproduced  in  period  VIII,  perhaps  by  an  analogous  effect  of  the  law  of  13  May, 
1863  (revision  of  the  Code),  and  for  the  Tribunals  by  reason  of  the  law  of  20  May, 
1863,  on  the  summary  prosecution  ("instruction  immediate")  of  flagrant  delicts. 
Perhaps  one  may  further  charge  the  most  striking  variations  of  this  table,  in  the 
case  of  the  Assizes,  to  the  various  laws  respecting  the  jury,  —  laws  which  either 
on  account  of  the  number  of  votes  necessary  for  conviction,  or  on  account  of  the 
different  ways  of  selecting  the  jury,  should  render  acquittals  more  or  less  easy,  as 
QuStelet,  "Physique  sociale,"  §8,  Sec.  3,  lib.  4;  and  BSrenger,  "De  la  repression 
penale,"  I,  258,  make  the  Minister  of  Justice  ("garde  des  Sceaux")  observe  in  his 
report  on  the  statistics  for  1848.  Thus,  for  example,  in  the  Assizes,  we  see  that  the 
high  figures  of  acquittals  in  period  I,  due  in  part  to  the  Revolution  of  1830,  but  in 
greater  measure  due  to  the  law  of  2  May,  1827,  which  substituted  general  for  re- 
stricted jury  lists,  reaches  the  maximum  in  period  II,  after  the  law  of  4  March, 
1831,  had  increased  the  number  of  votes  necessary  for  conviction  from  7  to  8: 
it  diminishes,  on  the  contrary,  in  period  III  by  reason  of  the  law  of  9  September, 
1835,  which  restored  7  as  the  number  of  votes  necessary  for  conviction.  In  period 
V,  the  number  of  acquittab  increases  whether  because  of  the  Revolution  of  1848 
or  the  decree  of  6  March,  1848,  which  increased  the  number  of  votes  to  8;  this  it 
is  true  by  the  decree  of  18  October  of  the  same  year:  and  with  this  latter  there 
cooperated  the  decree  of  7  August  of  that  year,  which  enlarged  the  jury  lists  on  the 
basis  of  the  political  electorate  and  led  to  the  formation  of  less  severe  juries  since  the 
jury  was  not  preferentially  drawn  from  the  social  classes  which  were  most  interested 
in  and  most  inclined  to  rigorous  penalties.  In  like  manner,  the  marked  decrease  of 
period  VI  was  brought  about,  aside  from  the  strictness  inspired  and  imposed  by 
the  imperial  government,  by  the  law  of  4  Jime,  1853,  which  restricted  the  jury 
lists:  and  it  was  probably  the  same  in  period  X  after  1872  in  consequence  of  the 
establishment  of  a  strict  government  after  the  revolution  and  as  a  result  of  the 
law  of  21  November,  1872,  which  again  restricted  the  jury  lists,  extended  by  a  prior 
law  of  1871. 

These  observations,  published  by  me  in  my  "Studi  sulla  criminalita  in  Fran- 
cia  dal  1824  al  1878"  are  found  almost  literally  in  the  official  report  of  the  Min- 
ister of  Justice  at  the  beginning  of  the  recapitulatory  work:  "La  Justice  en  France 
de  1826  a  1880"  (Paris.  1882),  p.  37. 

Tarde  in  a  chapter  of  "  Criminalite  comparee,"  where  he  sketches  a  psychological 
analysis  on  the  "Degre  de  conviction  juridiciaire"  required  for  a  conviction,  —  a 
degree  which  changes  between  juries  and  judges,  between  judges  and  tribimals, 
—  says  that  he  has  never  seen  this  question  treated  by  any  one,  not  even  by  the 
Italian  positivists  (p.  124). 

I  may  be  permitted  to  remark  that  these  observations  and  researches  which 
we  have  just  seen  on  the  annual  proportions  of  acquittals  give  some  indications 
on  that  same  question  and  not  only  from  the  psychological  but  also  from  the  so- 
ciological point  of  view.  See  also  VvemSs,  "Le  crime  et  le  criminel  devant  le  jury," 
J.  S.  S.  (Paris,  1894),  pp.  325  et.  seq. 

In  my  Italian  editions  I  made  as  full  a  statistical  examination  as  could  be 
made  from  the  figures  for  Italy.  See  the  4th  edition,  pp.  359-362.  We  can  on 
that  account  reach  only  a  negative  conclusion  which  is  as  follows:  a  constant  and 
important  decrease  of  repression  has  not,  in  our  country,  responded  to  the  strong 
oscillations  and  to  the  general  increase  in  the  number  of  delicts,  which  could 
have  shown  a  direct  connection  between  delinquency  and  pimishment. 


§  153]  LAW  OF  CRIMINAL  SATURATION  221 

of  misdeeds,  is  yet  an  important  element  in  the  effectiveness  of 
pmiishments  in  that  it  is  related  to  that  hope  of  impunity  which 
weakens  all  penalties  and  which  therefore  indicates  a  greater  or 
lesser  efficacy  in  the  ratio  which  the  increase  or  decrease  in  the 
number  of  undiscovered  criminals  and  criminals  released  for 
want  of  proof  bears  to  the  total  number  of  misdeeds  denounced 
and  discovered. 

§  153.  Unpunished  Crimes  as  a  Cause  of  Increase  in  Crime. 

First  of  all,  there  is  a  whole  series  of  data  that  statistics  cannot 
in  any  way  verify  but  which,  nevertheless,  is  of  great  importance, 
since  it  cooperates  in  enhancing  the  hope  of  impunity.  This  is 
the  number  of  crimes  which  are  not  discovered.  However,  the 
influence  which  this  factor  possesses  to  provoke  new  crimes  in 
spite  of  the  penalties  provided  in  the  codes  is  exclusively  exerted 
on  individuals  who  have  already  committed  crime.  When  a 
crime  is  discovered  and  the  guilty  person  remains  unknown,  or 
when  his  guilt  is  not  proven,  the  resulting  effect  is  of  infinitely 
more  consequence  in  paralyzing  the  efficacy  of  punishment,  since 
it  reaches  all  who  have  knowledge  of  the  discovery  of  the  crime. 
It  may  be  asserted  that  when  it  is  notorious  that  a  grave  crime 
has  been  committed  and  that  its  author  is  unknown,  this  has 
infinitely  greater  influence  in  tempting  and  provoking  persons 
already  predisposed  to  crime  than  the  knowledge  of  daily  con- 
victions has  to  deter  them.  In  reahty,  punishment,  whatever 
you  make  of  it,  strikes  but  a  small  minority  of  the  delinquents.^ 
Even  disregarding  undiscovered  crimes,  if  one  sums  up  only  the 
denounced  crimes  of  which  the  authors  remain  unknown  or  be- 
cause of  insufficient  proof  benefit  by  an  "ordonnance  de  non- 
lieu"  and  the  number  of  defendants  tried  and  acquitted  for  lack 

^  We  find  the  same  results  for  France;  and  this  in  studying  an  even  larger  period. 

This  shows  a  growth  in  the  number  of  unknown  perpetrators  and  a  decrease 
in  cases  of  lack  of  proof;  and,  hence,  a  movement  which  is  in  no  way  proportion- 
ate to  the  almost  four-fold  number  of  prosecutions  which  fail  annually.  It  shows, 
also,  a  new  confirmation  of  the  absence  of  causal  relation  between  the  eflScacy  of 
penal  prosecutions  and  the  drift  of  criminality. 

It  is  strange  that  Tarde  in  a  study  on  unpunished  delicts  in  the  "Essais  et 
melanges  sociologiques"  (Lyons,  1895),  should  have  given  only  the  effective  fig- 
ures for  delicts  of  which  the  criminals  remained  unknown  or  have  been  discharged 
for  lack  of  suflBcient  proof,  without  showing  the  percentage  in  relation  to  the  total 
figures  of  delicts  annually  denounced,  the  total  of  which  is  increased  in  other  ways. 
Had  he  made  these  calculations  his  lamentations  would  have  had  no  basis  in  sta- 
tistics or  in  facts;  and  Bosco,  usually  so  discreet,  would  not  so  blindly  have  trusted 
him.    Bosco,  "  La  statistica  civile  penale  e  rinstituto  intemationale  a  Pietroburgo," 


222 


DATA  OF  CRIMINAL  STATISTICS 


[§153 


of  evidence  or  by  reason  of  a  statute  of  limitations  (prescription) 
or  by  the  nullity  of  the  penal  action  (reversal  on  appeal),  and  the 
number  of  pardons  and  amnesties,  it  will  be  found,  as  I  said  in 
the  Commission  of  Judicial  Statistics  (and  it  has  been  vainly  dis- 
puted), that  sixty-five  per  cent,  of  discovered  delicts  remain  un- 
punished.^ Since  this  condition,  which  in  the  end  paralyzes  even 
the  feeble  intimidative  power  of  punishment,  is  constant  and  inevi- 
table in  all  countries,  let  us  see  whether  it  has  sufficiently  domi- 
nated in  the  last  decade  that  we  may  find  in  it  one  of  the  reasons  for 
the  increase  of  criminality.  We  note  for  Italy  that  the  proportion 
of  delinquents  and  persons  discharged  for  want  of  sufficient  evi- 
dence was  rather  on  the  decline  from  1880  to  1895,  while,  on  the 
contrary,  crime  continued  to  increase.  It  thus  showed  that  it  is, 
even  from  this  point  of  view,  independent  of  the  greater  or  lesser 
efficacy  of  the  prosecutions,  because  it  depends  on  anthropologi- 
cal, physical,  and  social  factors  which,  aside  from  repression, 
determine  its  progress  each  year.  Now  take  up  in  the  case  of 
France  the  second  element  of  judicial  repression,  i.  e.,  the  propor- 
tion of  persons  sentenced  to  the  heaviest  penalties,  in  relation 

pp.  288-289.  See  also  Tarde,  "Les  transformations  de  rimpunite,"  A.  A.  C. 
(November,  1898). 


France.  —  Perpetrators  unknown  or  not  sufficient  indications. 

AFFAIRS   SENT   TO   THE   ARCHIVES 

(by  the  Trib.  publ.)  or  ending  in  an  "ordonnance  de 

non-lieu"   (Cabinet  d'Instr.)  all  prosecutions  ended 

Yearly  Averages 

because  of 

Unknown  perpetrators 

InsuflScient  proofs 

percentage 

percentage 

1831-1835 

10.7 

8.6 

1836-1840 

10.0 

8.1 

1841-1845 

9.9 

7.9 

1846-1850 

11.1 

7.1 

1851-1855 

11.6 

6.9 

1856-1860 

11.6 

6.8 

1861-1865 

11.8 

7.6 

1866-1870 

12.2 

8.2 

1871-1875 

13.1 

7.8 

1876-1880 

13. S 

7.6 

1881-1885 

14.8 

5.8 

1886-1890 

16.4 

5.0 

1891-1895 

16.8 

4.8 

1  A.  C.  S.  (1894),  p.  186. 


§153] 


LAW  OF  CRIMINAL  SATURATION 


223 


to  the  total  number  of  convictions.  I  have  kept  track,  in  the 
Courts  of  Assize,  of  the  death  sentences,  and  the  sentences  to 
hard  labor  and  solitary  confinement,  since  the  other  persons 
sentenced  are  either  minors  sent  to  a  house  of  correction  or 
prison  with  simple  correctional  penalties,  or  fine.^      This  stronger 


1 

SENTENCED   IN    THE   ASSIZES 

(After  argument) 

SENTENCED    TO    PRISON 

Feance 

to  hard  labor 

BY    THE   TRIBUNALS 

to  death 

or  solitary  con- 
finement 

per  cent. 

per  cent. 

per  cent. 

I.   1826-30 

2.5 

38 

61 

II.    1831-35 

1.5 

42 

65 

III.    1836-40 

0.7 

37 

65 

IV.    1841^5 

1.0 

40 

61 

V.    1846-50 

1.0 

39 

62 

VI.    1851-55 

1.1 

48 

61 

VII.    1856-60 

1.0 

49 

61 

VIII.    1861-65 

0.6 

48 

64 

IX.   1866-69 

0.5 

47 

68 

X.   1872-76 

0.7 

49 

66 

XI.    1877-81 

0.7 

50 

66 

XII.    1882-86 

1.0 

40 

65 

XIII.    1887-91 

1.0 

48 

60 

XIV.    1892-95 

1.0 

48 

58 

If  this  table  does  not  show  (as  might  have  been  expected)  so  striking  an  in- 
crease of  severity  as  is  shown  in  the  proportion  of  acquittals,  it  nevertheless  proves 
that  even  in  relation  to  the  severity  of  punishment,  repression  has  not  at  all 
diminished.  We  even  observe  that,  in  the  Court  of  Assize  (excluding  the  first  period 
since  it  was  before  the  general  revision  of  the  Code  of  the  law  of  1832),  while  cap- 
ital sentences  show  a  decrease  in  the  later  periods  as  compared  with  the  earlier 
(and  this  is  largely  due  to  the  laws  of  1832,  1848,  etc.,  which  reduced  the  number 
of  cases  involving  the  death  penalty)  and  at  the  same  time  show  an  increase  after 
period  VIII,  sentences  to  hard  labor  and  to  reclusion  (imprisonment)  show  a  steady 
increase  after  period  II,  and  especially  from  1851.  So,  ako,  in  the  Tribunals, 
save  for  a  few  oscillations  as  in  periods  XIII  and  XIV,  one  observes,  after  1860, 
a  steady  increase  in  the  heavier  sentences. 

That  this  continual  predominance  of  heavier  penalties,  both  in  the  Tribunals 
and  in  the  Assizes,  really  manifests  a  greater  severity  of  the  judges,  is  demonstrated 
by  calling  attention  to  the  fact  that  there  would  otherwise  have  been,  at  the  same 
time,  an  increase  in  the  most  serious  delicts;  and  this  is  not  the  case  since,  quite 
on  the  contrary,  we  observe  in  France  a  general  decrease  in  crimes  against  the 
person  (except  in  criminal  assaults  against  children)  and  especially  in  crimes 
against  property.  This  helps  to  explain  in  part  the  reduction  in  capital  convic- 
tions which  occurred  except  in  the  last  three  periods. 

Further,  we  find  another  eloquent  proof  of  this  severity  in  the  similar  move- 
ment of  the  statistics  of  acquittals  in  relation  to  those  of  the  heavier  sentences  since 


224  DATA  OF  CRIMINAL  STATISTICS  [§  153 

proportion  of  heavy  penalties  occurs  notwithstanding  the  con- 
tinual increase  in  the  admission  of  extenuating  circumstances, 
which,  in  the  Court  of  Assize,  increased  from  fifty-nine  per  cent, 
in  1833  to  seventy-three  p)er  cent,  in  1886  and,  in  the  correc- 
tional Tribunals  from  fifty-four  per  cent,  in  1851  to  sixty-five  per 
cent,  in  1886.  Furthermore,  the  number  of  trials  in  the  Assizes 
for  resisting  arrest  has  steadily  decreased,  falling  from  a  yearly 
average  of  six  hundred  and  forty-seven  in  the  period  1826-1830, 
to  two  hundred  and  sixty-six  in  1882-1886,  and  one  hundred  and 
forty-three  in  1891-1895.  Finally,  we  find  in  the  five  years  im- 
mediately following  the  estabUshment  of  the  new  Penal  Code 
(1890),  that  in  Italy  criminality  had  a  marked  increase  at  a  time 
when  the  severity  of  repression  was  also  increasing.  In  England, 
on  the  contrary,  it  has  been  shown  that  in  the  last  decade,  while 
the  severity  of  punishment  continually  decreased,  crime  did  not 
increase  but  also  actually  decreased:  a  decrease  all  the  more 
foreign  to  the  other  countries  of  Europe  since  it  is  brought  about 
by  the  mitigation  of  the  most  widespread  social  causes  of  crime, 

we  observe,  except  in  the  last  decade,  that  heavy  sentences  increase  when  the 
number  of  acquittals  decreases  (periods,  IV,  VI,  \'II,  X  in  the  Assizes,  and  II, 
V,  \^II  in  the  Tribunals),  and  vice  versa  the  heavy  penalties  decrease  when  ac- 
quittals are  most  easy  (periods  V  and  VIII  for  the  Assizes).  This  is  a  new  proof 
that  the  lesser  number  of  acquittals  and  the  increased  predominance  of  heavy 
punishment  is  actually  the  effect  of  a  greater  rigor  on  the  part  of  juries  and  judges. 

Cuche,  "L'avenir  de  I'intimidation,"  in  the  "Rev.  p^nit"  (1894),  p.  786, 
says  that  on  the  contrary  there  is  in  France  a  current  unfavorable  to  severity  of 
repression  and  that  this  fact,  scientifically  certain,  has  been  misconceived  by  Ferri. 

Now,  statistical  figures  are  positive  facts  and  they  show  us  that  repression  in 
France  has  not  decreased,  either  as  to  quantity  (acquittals)  nor  as  to  quality 
(heavy  pimishments). 

The  contrary  impression  is  only  that  of  superficial  observers,  who,  in  seeing 
the  increase  in  the  effective  number  of  light  sentences,  do  not  reflect  (as  we  have  just 
seen  in  the  case  of  Tarde,  apropos  of  undiscovered  criminals)  that  this  is  due  to 
the  enormous  increase  of  petty  delicts  and  to  the  morphological  evolution  of  crim- 
inality, which  is  becoming  less  and  less  violent. 

An  accurate  opinion  can  be  formed  only  from  the  percentage  figures,  and  these 
figures  in  spite  of  any  contrary  appearance  show  the  accuracy  of  my  statement. 
Moreover,  Cuche  himself  substantially  admits  that  the  proofs  made  have  already 
produced  a  change  in  the  views  of  criminalists,  good  eclectics  like  himself,  who 
concede  that  penalties  are  not  the  remedy  for  crime,  but  are  not  yet  willing  to 
take  from  them  all  efficacy,  and  who  make  of  penalties  something  like  the  paper 
of  Dante,  "not  yet  black,  but  the  white  of  which  is  gone." 

Hence,  as  a  result,  they  end  in  recommending  this  aggravation  of  penalties 
which  is  the  logical  consequence  of  the  old  theory  of  intimidation,  a  theory  sys- 
tematized by  Feuerback  (psychological  coercion)  and  now  taken  up  again;  a  fact 
which  proves  that  there  is  very  little  of  inventive  imagination  among  the  eclectics 
(Dubuisson,  Impallomeni,  Alimena,  Cuche,  etc.)  of  whom  we  shall  speak  in  Part 

m,  post. 


§  154]  LAW  OF  CRIMINAL  SATURATION  225 

such,  for  instance,  as  the  number  of  abandoned  children  and  in 
general  the  betterment  in  the  conditions  of  moral  existence  among 
the  working  classes,  which  are  the  most  numerous.^  Hence,  we 
may  conclude  that  while  judicial  repression  in  Italy  and  France, 
whether  in  the  number  of  acquittals  or  in  the  predominance  of 
heavy  sentences,  both  in  crimes  and  in  delicts,  has  not  become 
less  severe,  crime  has  constantly  gone  on  increasing.^  In  this 
fact,  which  gives  a  categorical  denial  to  the  general  opinion  that 
the  sovereign  remedy  against  the  overflow  of  delicts  is  in  a  more 
stringent  repression,  we  have  the  right  to  see  a  positive  proof 
that  the  systems  of  penalty  and  reclusion  hitherto  adopted  have 
not  fulfilled  their  duty  of  defending  society  against  the  most  usual 
criminal  attacks.  For  the  future  it  is  necessary  to  require  of 
criminal  law  a  better  direction  in  the  study  of  facts,  so  that  the 
study  of  psychological  and  sociological  laws  may  guide  us  in  the 
function  of  social  preservation,  less  towards  a  violent  and  always 
tardy  reaction  against  actual  criminal  phenomenon,  than  towards 
a  constant  effort  to  eliminate  or  avoid  its  factors. 

§  154.  Prevention  of  Crime  not  Punishment  for  Crime  Needed. 

The  capital  importance  of  this  conclusion,  drawn  from  the 
data  of  statistics,  and  the  necessity  of  supporting  it  on  general 
biological  and  sociological  laws,  requires  a  more  complete  expla- 
nation of  the  insignificant  efficacy  of  punishment  in  fighting  crime. 
And  this  is  the  more  necessary  since,  after  the  second  edition  of 
this  work  appeared,  a  number  of  criticisms  and  objections  were 

^  Tarnowsky,  "La  diminuzione  della  criminalita  in  Russia,"  J.  M.  J.  (St. 
Petersburg,  October,  1897),  reviewed  in  the  "Rev.  penit."  (1898),  p.  172. 

*  In  tliis  connection,  Le  Bon,  "L'homme  et  les  societes"  (Paris,  1881),  II, 
389,  gives  a  short  statistical  note  intended  by  him  to  show  that  the  increase  of 
crime  in  France  is  due  to  a  lesser  repression.  To  prove  this  assertion,  which  is 
only  the  ordinary  illusion  on  the  efficiency  of  penalties,  he  contrasts  the  increase 
of  convictions  for  crimes  against  the  person  from  1872-1876,  with  the  decrease  of 
capital  executions.  Really  such  a  use  of  criminal  statistics  shows  simplicity  on 
the  surface.  Is  the  death  penalty  the  sole  element  of  repression.-*  And  what 
relation  is  there  between  capital  executions  and  the  total  number  of  crimes  against 
the  person,  which  for  the  greater  part  are  not  punishable  with  death?  It  is  nec- 
essary to  glance  at  the  capital  crimes  (assassination,  poisoning,  parricide,  homi- 
cide) and  it  will  be  found  that  in  these  crimes,  not  in  five  years  but  ia  a  half 
century,  persons  accused,  tried,  and  sentenced  fell  ofif  in  spite  of  decrease  in  capital 
executions  from  660  in  1826  to  398  in  1878.  One  should  hence  be  persuaded  that 
in  order  to  judge  the  influence  of  repression  on  culpability,  it  is  at  least  necessary 
to  make  the  distinctions  and  the  careful  calculations  of  which  in  my  opinion,  I 
have  given  an  example. 


226  DATA  OF  CRIMINAL  STATISTICS  [§  155 

directed  to  this  fundamental  conclusion.^  A  consideration  of  the 
entirety  and  the  diverse  nature  of  anthroi>ological,  physical,  and 
social  factors,  favorable  or  unfavorable  to  the  genesis  of  criminal 
phenomena,  readily  proved  that  punishment  has  very  httle  power 
against  crime.  Punishment,  a  legislative  threat,  possessing  its 
greatest  force  as  a  psychological  motive,  obviously  cannot  com- 
bat the  physical  and  social  factors  of  crime,  such  as  climate, 
morals,  increase  of  population,  or  agricultural  productivity,  and 
economic  and  political  crises  which  statistics  show  are  the  most 
sensible  causes  of  the  increase  or  decrease  of  crime.  Consequently, 
in  accordance  with  the  natural  law,  which  demands  that  the 
combating  forces  shall  be  of  the  same  nature,  since  the  fall  of  a 
heavy  body  cannot  be  prevented,  deviated,  or  accelerated  except 
by  the  force  of  gravity,  it  is  evident  that  punishment,  because 
it  is  a  psychological  motive,  can  oppose  only  the  psychological 
factors  of  crime,  and  even  among  these  only  the  occasional  factors 
when  they  are  not  too  sudden.  It  is  further  evident  that  punish- 
ment, unless  appUed  in  the  isolation  of  the  culprit,  could  not 
neutralize  the  organic  and  hereditary  factors  disclosed  by  crim- 
inal anthropology.  It  is  not  comprehensible,  therefore,  how,  in 
face  of  the  complexity  of  criminal  factors,  so  different  in  kind 
and  energy,  pimishment  alone  should  be,  in  its  simphcity,  a  panacea 
for  all  criminal  impulses  and  for  all  delinquents.  On  the  contrary, 
one  can  understand  that  it  should  only  exert,  as  Roeder  ^  said, 
the  quite  insufficient  action  which  is  the  property  of  all  panaceas. 

§  155.   Three  Sociological  Strata  of  Delinquents. 

Let  us  recall,  in  this  connection,  a  fact  too  often  forgotten  by 
legislators,  criminaUsts,  and  superficial  observers.  Every  teacher 
who  has  any  aptitude  for  psychological  observation  always 
distinguishes  in  his  class  three  categories:  the  diligent  and  well- 
disposed  pupils  who  work  on  their  own  initiative,  without  any 
need  of  disciplinary  rigor;  the  ignorant  and  sluggish  dullard 
(neurasthenic  and  degenerate)  from  whom  one  can  extract  noth- 

^  The  basic  importance  of  this  conclusion  (which  if  it  should  once  be  generally 
accepted  would  give  an  entirely  different  orientation  to  the  measures  of  social 
preservation  against  the  disease  of  crime)  has  recently  been  recognized  by  the 
"Conference  du  jeune  Barrau"  of  Brussels,  which  expressly  established  "an  in- 
vestigation of  convicts  to  determine  the  eflScacy  of  punishment  both  as  a  preven- 
tive and  correctional  means."  See  "Journal  des  Tribimaux"  (23  October,  1898), 
Col.  1091. 

*  Roeder,  "Las  doctrinas  fondamentales  reinantes  sobre  el  delito  y  la  pena** 
(Madrid,  1877),  p.  306. 


§  155]  LAW  OF  CRIMINAL  SATURATION  227 

ing  good  by  either  mildness  or  punishment:  and,  finally,  the 
pupils  who  are  neither  too  studious  nor  too  stubborn  and  for 
whom  a  discipline  based  on  the  laws  of  psychology  may  be  really 
effective.  It  is  the  same  for  soldiers,  for  prisoners,  for  every 
human  association,  and  even  for  universal  society.  Groups  of 
individuals,  bound  together  by  constant  relations,  form  so  many 
partial  organisms  in  the  collective  organism  of  society  and  re- 
produce society  itself  in  the  partial  organism  just  as  a  fragment 
of  a  crystal  reproduces  the  mineralogical  characteristics  of  the 
whole  crystal.^  The  psychological  and  sociological  laws  are  as 
constant  as  the  physical  and  physiological.  In  criminal  sociology 
we  can  divide  the  social  strata  into  three  categories;  the  class 
normally  highest  (and  this  is  not  always  the  class  socially  highest), 
which  does  not  commit  delicts  because  it  is  honest  in  its  organic 
constitution,  as  the  effect  of  a  moral  sense  without  any  other 
sanction  than  that  of  its  own  conscience  or  of  pubhc  opinion  and 
even,  as  Spencer^  remarks,  by  the  effect  of  habit  acquired  and 
hereditarily  transmitted,  and  (as  I  think  should  be  added)  main- 
tained by  favorable  conditions  of  social  life.  This  category,  for 
which  the  Penal  Code  is  perfectly  useless,  is  unfortunately  the 
least  numerous  in  society.^    Another  class,  lower  in  the  scale,  is 

'  There  are,  nevertheless,  some  differences  between  the  manifestations  of  ac- 
tivity of  a  group  of  men  and  those  of  a  whole  society.  This  is  why  I  think  there 
should  be  a  bond  uniting  psychology,  which  studies  the  individual,  and  sociology, 
which  studies  a  whole  society,  into  what  might  be  called  collective  psychology. 
The  phenomena  proper  to  certain  groups  of  individuals  are  governed  by  laws  sim- 
ilar but  not  identical  with  those  of  sociology,  and  vary  as  the  groups  themselves 
are  an  accidental  or  permanent  reunion  of  individuals:  thus  collective  psychology 
has  its  field  of  observation  in  all  of  the  more  or  less  adventitious  reunions  of  men: 
public  roads,  markets,  exchanges,  shops,  theaters,  committees,  assemblies,  colleges, 
schools,  barracks,  prisons,  etc. 

The  practical  applications  to  be  deduced  from  these  facts  are  numerous,  as 
we  shall  see,  for  example,  in  Chap.  IV,  in  treating  of  the  jury  according  to  the  laws 
of  psychology,  and  as  Sighele,  in  developing  this  thought  (which  I  had  expressed  in 
my  first  edition,  1881,  p.  57),  has  quite  fully  demonstrated  by  his  labors  in  collec- 
tive psychology,  i.  e.,  psychology  proper  to  a  visible  and  limited  group  of  men. 
And  for  that  very  reason  it  is  intermediate  between  individual  psychology  and 
social  psychology  or  "Volkerpsychologie,"  appropriate  to  a  whole  society  or  to  a 
class  without  visible  limits  of  extension. 

See  Sigheli,  "La  folia  delinquente,"  2d  ed.  (Turin,  1895),  and  "La  coppia  cri- 
minale,"  id  ed.  (Turin,  1897);  Le  Bon,  "  La  psychologic  des  foules "  (Paris,  1895); 
Tarde,  "Foules  et  sectes,"  in  "Essais  et  melanges  sociologiques";  Rossi,  "L'ani- 
mo  della  folia"  (Cosenza,  1898). 

'  Spencer,  "The  Data  of  Ethics,"  6th  ed.  (London,  1892). 

'  It  is  through  forgetfulness  of  this  difference  in  the  social  strata,  that,  for 
example,  t^mile  de  Girardin,  "Du  droit  de  punir"  (Paris,  1871),  was  led  to  the  idea 
that  for  the  maintenance  of  social  order,  it  would  suffice  to  abolish  punishment 


228  DATA  OF  CRIMINAL  STATISTICS  [§  156 

composed  of  individuals  refractory  to  every  sentiment  of  honesty 
because  they  are  deprived  of  education  and  always  held  by  mate- 
rial and  moral  wretchedness  in  the  primitive  condition  of  a  savage 
fight  for  existence.  They  receive  as  an  inheritance  (which  they 
transmit  to  their  descendants  through  marriage  with  other  indi- 
viduals of  the  same  category)  an  abnormal  organization,  which 
unites,  as  we  have  seen,  with  a  pathological  and  degenerate  con- 
stitution in  a  real  atavistic  return  to  the  savage  state.  From  this 
class  is  recruited  the  greater  part  of  the  contingent  of  born-crim- 
inals, against  whom  punishment  as  a  legislative  threat  has  least 
efficacy  because  they  lack  the  social  sense  which  would  make 
them  regard  punishment  otherwise  than  as  the  risk  naturally 
attached  to  crime,  in  the  same  way  as  other  dangers  are  attached 
to  honest  industrial  activity.  The  third  social  class  is  composed 
of  individuals,  not  born  to  crime,  but  whose  honesty  will  not  with- 
stand a  test,  who  oscillate  between  vice  and  virtue,  who  are  not 
devoid  of  moral  sense  and  who  often  have  a  certain  amount  of  cul- 
ture and  education.  For  these,  punishment,  within  the  narrow 
limits  of  a  psychological  motive,  may  be  really  efficacious.  It  is 
precisely  for  this  class,  which  furnishes  the  most  numerous  con- 
tingent of  occasional  criminals,  that  punishment  offers  some 
utihty,  especially  when  in  its  application  it  inspires  scientific 
principles  of  sane  penitentiary  methods  and  criminal  psychology, 
and  when  seconded  at  the  very  outset  by  efficient  social  measures 
to  prevent  the  occasions  for  crime. 

§  166.  Pxmishment  as  a  Preventative  and  the  Three  Classes  of  Criminals. 

Garofalo,  appropriating  these  ideas,  concludes  that  while  there 
is  some  temerity  in  a  general  assertion  that  punishment  lacks 
preventative  efficacy,  yet  it  is  necessary  to  distinguish  between 
the  classes  of  delinquents  capable  of  feeling  the  full  value  of  the 
menace  and  those  upon  whom  it  acts  with  but  limited  force.^ 
Yet  this  conclusion  as  to  the  very  limited  efficacy  of  punishment, 
shown  by  the  observation  of  facts  and  proven,  in  fact,  as  Bentham 
says,  by  the  infliction  of  every  punishment,  since  the  infliction 
proves  that  the  penalty  could  not  prevent  the  crime,^  is  opposed 
by  an  illusion  so  deeply-rooted  that  even  some  positivists  have 

and  substitute  the  sanction  of  public  opinion.  He  forgot  that  while  this  sanction 
would  suflSce  for  the  class  of  honest  folk,  yet  something  more  conformable  to  their 
sentiments  and  natural  tendencies  is  required  for  the  class  of  evildoers. 

'  Garofalo,  "Criminology  "  (Little,  Brown  &  Co.,  1914),  p.  208. 

*  Bentham,  "Treatise  on  Civil  and  Penal  Law,"  Litrod.,  p.  IV. 


§  156]  LAW  OF  CRIMINAL  SATURATION  229 

not  escaped  it.  Although  they  agree  with  me  in  the  end,  they 
either  declare  that  "the  persistence  with  which  crime  is  com- 
mitted proceeds  from  the  lack  of  an  opportune  repression"  ^ 
and  "that  one  of  the  principal  causes  of  the  increase  of  crime  in 
Italy  is  the  mUdness  of  punishment,"  ^  or  they  neglect  the  first 
question  which  should  be  put  in  the  matter  of  criminal  sociology, 
namely,  whether  penalties  of  any  kind  (in  which  they  believe  that 
they  see  excellent  defensive  weapons)  actually  have  the  virtue 
of  social  defense  and  to  what  extent  they  possess  it.' 

While  our  conclusions  are  divergent  from  those  of  the  partisans 
of  penal  severity,  yet  they  do  not  agree  with  the  conclusions  of 
writers  who  place  too  much  confidence  in  the  mildness  of  punish- 
ment. There  always  remains  this  essential  difference:  while  the 
latter  do  not  reach  (as  some  have  done)  the  apex  of  exaggeration 
in  believing  that  punishment  is  the  more  efficacious  and  useful 
against  crime  (I  mean  natural  crime)  in  the  ratio  of  its  mildness, 
they  nevertheless  (if  not  in  words  at  least  in  fact)  retain  their 
exclusive  confidence  in  the  action  of  penalties.  We,  however, 
believe  (and  this  idea,  sustained  by  the  positive  school  in  new  experi- 
mental proofs,  has  gained  much  ground),  we  believe,  I  assert,  that 
first  of  all  it  is  necessary  to  have  recourse  to  other  methods  and 
means  than  penalties  for  the  defense  of  society.  We  believe,  in 
a  word,  that  remedies  should  be  adapted  to  the  different  factors 
of  crime.  The  factors  most  susceptible  of  being  changed,  as  well 
as  the  most  active,  are  the  social  factors,  and  we  maintain,  as 
Prins  says,  that  "social  remedies  are  appropriate  to  social  ills."* 
Hence  Tarde's  remark  is  inaccurate  when  he  says  that  our  con- 
viction of  the  quasi-utility  of  punishment  is  solely  the  effect  of  our 
theories  on  the  anthropological  and  physical  nature  of  crime  and 
that,  "inversely,  the  important  predominance  attributed  by  him 
to  social  causes  in  the  origin  of  crime,  prevents  him  from  accepting 
this  conclusion."  *  In  reality,  since  punishment  as  a  psychological 
motive  is  an  anthropological  measure,  and  as  a  material  preven- 
tive is  a  physical  measure,  it  should,  in  abstract  logic,  correspond 
to  the  theory  of  crime  which  is  exclusively  biological  and  physical. 

^  QuStelet,  "  Anthropom^trie,"  Lib.  V,  §5. 

*  Lombroso,  " L'incremento  del  delitto  in  Italia"  (Turin,  1870),  p.  28. 

^  Beltrani-Scala,  "La  riforma  penitenziaria  in  Italia"  (Rome,  1879);  Garo- 
falo,  "Criterio  positive  della  penalita"  (Naples,  1880). 

*  Prins,  "Ctude  sur  la  criminalite  d'apres  la  science  modeme,"  in  the  "Revue 
de  Belgique"  (15  December,  1880). 

*  Tarde,  "La  philosophic  penale"  (Lyons,  1890),  p.  468. 


230  DATA  OF  CRIMINAL  STATISTICS  [§  157 

On  the  contrary,  it  is  because  I  recognize  also  the  influence  of 
environment,  that  I  maintain  experimentally  the  inefficiency  of 
punishment  as  a  remedy  for  crime,  when,  aside  from  punishment 
and  before  punishment,  nothing  is  done  by  other  means  to  neu- 
traUze  or  diminish  the  crime-producing  action  of  social  factors. 

§  167.  Prevention  the  Object  of  Criminal  Laws. 

The  Classical  School,  confronted  with  the  excess  of  rigor  of  the 
Middle  Ages,  was  solely  preoccupied,  and  property  so,  with  the 
mitigation  of  penalties.  It  could  not  (since  each  epoch  has  its 
mission)  seriously  occupy  itself  with  that  other  more  useful  and 
more  efficient  task,  which  consists  in  anticipating  crime.  A  small 
group  of  thinkers,  by  the  nature  of  their  minds  more  prone  than 
the  others  to  positive  studies  (I  shall  cite  them  further  on), 
in  vain  opposed  a  few  bold  and  profound  pages  on  preventative 
methods  to  the  numerous  volumes  which  were  written  on  punish- 
ment. They  were  not  Hstened  to  simply  because  science  had  not 
yet  demonstrated  the  multiple  factors  of  crime  and  the  great 
majority  of  criminalists,  legislators,  and  judges  were  concerned 
only  with  repression.  We  have,  it  is  true,  the  platonic  declara- 
tions and,  as  Bentham  says,  "the  empty  declamations"  of  a 
multitude  of  writers  on  the  sole  and  real  utihty  of  prevention  in 
relation  to  repression.  But  the  facts  do  not  bear  out  the  words. 
I  limit  myself  to  the  citation  of  a  few  examples  in  order  to  show 
that  in  all  classes,  among  practical  men  such  as  public  officers 
and  legislators,  the  error,  that  punishment  is  the  real  panacea 
for  crime,  reigns  supreme.  The  practical  men  declare  that  "a 
prohibitive  penal  law  should  be  considered  the  first,  the  grandest, 
the  mistress  of  preventive  laws."  ^  Public  officers,  concerned 
at  the  steady  extension  of  crime,  propose  a  more  vigilant  and 
more  severe  repression  as  the  sovereign  remedy.  A  coun- 
sellor of  the  French  Court  of  Cassation  writes:  "In  a  good 
social  police  there  is  no  better  safeguard  for  order  and  security 
than  intimidation."  ^  Legislators  speak  the  same  way.  In  France 
the  Minister  of  Justice  ("garde  des  Sceaux")  in  his  report  on 
judicial  statistics  for  1877  treating  of  the  steady  increase  of  rape 
and  criminal  assaults  concludes  thus:  "In  any  event,  only  a  firm 
and  energetic  repression  can  react  against  such  a  deplorable  spread 

^  Musso,  "H  codice  penale  in  Italia,"  R.  E.  (16  January,  1881). 
*  Ayliet,  "La  question  penitentiaire,"  in  the  R.  D.  M. 


§  158]  LAW  OF  CRIMINAL  SATURATION  231 

of  outrages  against  good  morals";  ^  and  even  more  recently 
another  French  Minister  of  Justice  concludes  a  volume  of  statis- 
tical recapitulation  from  1826  to  1880,  by  saying  that  the  in- 
crease of  crime  "cannot  be  combated  except  by  an  incessantly 
energetic  repression."  ^  Tarde  also  becomes  a  party  to  these 
words,  falling  into  the  common  illusion,  when  he  says;  "if 
crimes  are  only,  as  is  asserted,  the  railway  accidents  of  society 
under  full  steam,  it  should  not  be  forgotten  that  a  fast  train  re- 
quires a  more  powerful  brake  and  there  is  no  doubt  that  such  a 
state  of  things  demands  an  increase  or  a  change  of  repression  and 
of  penalties."^  Our  conclusion  is  not  new;  but,  as  Stuart  Mill 
said,  there  are  two  ways  to  advance  useful  innovations;  either  to 
disclose  what  was  not  previously  known,  or  to  place  again  in 
honor  and  fortify  with  new  proofs  the  truths  too  much  neglected. 
While  some  criminalists,  with  the  aid  only  of  sagacious  observa- 
tion guided  rather  by  a  positivist  turn  of  mind  than  controlled  by 
the  strict  laws  of  the  method,  have  continued  to  repeat  the  phrase 
"Quid  leges  sine  moribus?"  —  and  to  proclaim  this  truth,  that 
it  is  better  to  anticipate  crime  by  suppressing  its  causes  than  to 
fight  it  by  useless  repression,  their  voices  have  not  been  heard. 
But  when  a  science,  animated  by  a  new  spirit  and  profiting  by 
the  positive  researches  of  criminal  sociology,  proclaims  the  same 
truth  and  confirms  it  by  the  study  of  the  natural  causes  of  crime, 
it  is  very  probable  that  this  truth  will  pass  from  the  theoretical 
field  of  scientific  principle  into  the  fertile  domain  of  practical 
application. 

§  158.   History  of  Punishment. 

The  error  of  seeing  in  the  influence  of  penalties  a  serious  ob- 
stacle to  crime  is  so  widespread  that  it  is  worth  the  trouble  of 
seeking  its  historical  and  psychological  reasons,  since  "an  exami- 
nation of  its  genealogy  is  a  way  to  avoid  impatience  in  judging  of 
the  value  of  an  idea " :  ^  in  that  way  we  shall  find  many  argu- 
ments in  favor  of  our  conclusion.  If  we  pass  over  the  primitive 
foundation  of  vengeance,  derived  from  the  savage  period  of 
private  struggle  and  passed  into  the  spirit  and  rites  of  the  first 
penal  laws  and  which  endures  yet  in  a  state  of  survival  in  the  laws 

^  Dufaure,  "Rapport  sur  la  statistique  de  1876"  (Paris,  1878),  p.  xli. 

2  Humbert,  "Rapport  sur  la  justice  en  France  de  1826  k  1880"  (Paris,  1882), 
p.  cxxxi. 

'  Tarde,  "La  statistique  criminelle,"  in  the  R.  P.  (January,  1880),  p.  59. 
For  Italian  examples,  see  the  Italian  editions;  4th  ed.,  pp.  379-380. 

*  Spencer,  "The  Nebular  Hypothesis." 


232  DATA  OF  CRIMINAL  STATISTICS  [§  158 

of  modem  society,  if  we  disregard,  also,  the  hereditary  effect  of 
the  stern  traditions  of  the  Middle  Ages,  which,  like  the  preceding 
element,  contributes  to  an  miconscious  sympathy  for  the  severity 
of  penalties  especially  in  the  case  of  more  serious  and  recent 
crimes,  —  then  one  of  the  principal  reasons  of  this  tendency  is 
an  error  of  psychological  perspective  which  causes  us  to  forget 
the  considerable  differences,  that  I  mentioned  just  now,  between 
the  ideas,  habits,  and  feelings  of  the  different  social  strata.^  It  is 
because  of  this  forgetfulness  that  honest  folk  confuse  the  idea 
they  have  of  penal  law  and  the  impression  they  receive  from  it, 
with  the  very  different  idea  and  impression  of  the  social  strata 
which  furnish  the  greatest  number  of  deUnquents.  This  has 
been  frequently  remarked  (although  too  much  neglected)  by 
Beccaria,^  Carmignani,^  Holtzendorff,^  and  by  those  who,  like 
Lombroso,  have  studied  the  pecuhar  language  ("argot")  and 
literature  wherein  criminals  mirror  themselves  as  in  a  psychologi- 
cal glass. ^  It  is  further  forgotten  that  in  the  case  of  normal  men, 
the  greatest  repellent  efficacy,  after  physical  and  moral  repug- 
nance to  crime  which  is  the  strongest,  is  not  so  much  in  the  legal 
sanction  as  in  the  sanctions  of  secret  conscience  and  of  public 
opinion.  On  the  contrary,  these  sanctions  are  unknown,  or  prac- 
tically unknown,  to  the  abnormal  individuals  who,  in  their  organic 

^  Maine,  "Ancient  Law,"  Chap.  X. 

*  Beccaria,  "Dei  delitti  e  delle  pene,"  §  21. 

*  Carmignani,  "Teoria  delle  leggi,"  Lib.  Ill,  P.  I.  Cap.  V.;  P.  2,  Cap.  I. 

*  Holtzendorff,  "Das  Verbrechen  des  Mordes  und  die  Todesstrafe"  (Berlin, 
1875),  Chap.  II. 

*  Lombroso,  "L'uomo  delinquente,"  5th  ed.,  P.  Ill,  Cap.  X,  XII;  Venezmn, 
"Vocaboli  e  frasi  del  gergo  veneto,"  A.  P.  II,  2;  Mayor,  "Nota  sul  gergo  fran- 
cese,"  id.,  IV,  4. 

Habitual  criminals  call  the  galleys  ("le  bagne")  "the  happy  house"  and  the 
jail  (prison)  the  "little  Milan,"  or  "Casanza"  or  "home"  ("terra  tua").  The 
songs  of  the  convicts  have  similar  terms  in  the  "Canti  Siculi"  of  Pitre,  for  example: 

"Cu'dici  ca  la  carzara  castia 

Cuma  v'ingannati,  pavireddi." 
"Who  says  the  prison  chastens, 
"  How  are  you  deceived,  poor  people ! " 

and 
"  Prison,  my  life,  dear  happy  prison  ! 
"  How  I  love  to  be  within  thy  walls  !  .  .  . 
"There  only  findest  thou  brothers,  there  friends. 
"Money,  good  table,  bread  and  joy."  .  .  . 

A  song  of  the  French  prisons  ends  with  this  refrain: 

"Adieu!     Nous  bravons  vos  fers  et  vos  lois." 
"Farewell!     We  brave  your  irons  and  your  laws!" 


§  159]  LAW  OF  CRIMINAL  SATURATION  233 

and  psychic  constitution  represent  a  retarded  form  of  human 
evolution.  In  the  higher  classes  an  example  will  suffice,  and  it 
is  the  fact  noted  by  Spencer  ^  that  gambling  debts  and  debts  of 
the  Stock  Exchange  are  paid  scrupulously  although  there  are 
neither  penal  sanctions  nor  authentic  writings.  And  here  is  an 
observation  that  should  be  appended:  the  debtor's  prison  was 
never  sufficient  to  cause  contracts  to  be  punctually  executed,  so 
that  it  was  finally  aboUshed,  and  the  suppression  of  the  penalty 
did  not  have  the  effect  of  increasing  the  number  of  defaulted 
contracts.  In  the  lower  classes,  it  is  sufficient  to  have  once  visited 
the  prisons.  There  if  one  asks  a  convict  why  the  penalty  has  not 
deterred  him  from  crime,  he  generally  answers  that  he  did  not 
think  of  the  penalty;  or  else  he  answers,  as  an  habitual  thief 
at  Turin  answered  me,  and  as  many  others  have  repeated  to 
me  in  other  prisons,  that  "if  one  is  afraid  of  undergoing  ills 
through  working,  one  finally  ceases  to  work."  Such,  in  effect, 
must  be  the  feelings  and  the  thoughts  which  rule  the  lower  social 
strata,  where  ideal  conceptions  of  honesty  or  even  of  personal 
interest  (according  to  which  in  the  long  run,  virtue  is  always  the 
most  advantageous)  cannot  penetrate  the  material,  moral,  and 
intellectual  misery.  Stanley  observes  that  ffint-locks,  weapons 
used  by  civilized  countries  for  centuries,  are  only  now  appear- 
ing in  the  interior  of  the  Black  Continent.  In  like  manner  the 
psychologist  whose  observations  penetrate  the  lowest  social 
strata  notes  that  it  is  only  now  (so  unhappy  and  inhuman  are  the 
conditions  of  their  life)  that  a  distant  echo  of  certain  feelings 
and  certain  ideas,  long  possessed  by  the  upper  strata,  is  making 
itself  heard  in  those  depths. 

§  159.  Exceptional  Penalties  and  Repression. 

Another  equivocation  that  helps  to  maintain  this  exaggerated 
confidence  in  the  efficacy  of  penalties  is  that  the  effects  of  the  codes 
with  their  slow  and  circumspect  procedure  are  likened  to  the 
effects  of  exceptional  laws  and  of  their  summary  procedure.  They 
say:  "It  is  an  established  fact  that  the  energetic  repressions  of 
Sixtus  V  in  the  Papal  States;  of  the  Austrians  in  1849  against  the 
bands  of  Este  and  Brescin;  of  the  French  under  Manhes  in 
Calabria;  of  the  Italians  under  Pallavicino  and  Medici,  have 
been  able  to  control  and  sometimes  even  to  suppress  collective 
delicts.  And  certainly  the  crimes  of  the  internationalists  of 
^  Spencer,  "Introduction  k  la  science  sociale"  (Paris,  1878),  p.  15. 


234  DATA  OF  CRBONAL  STATISTICS  [§  159 

Paris  and  Alcolea  have  been  repressed  for  a  long  time  by  sudden 
massacres.  The  Pica  law  diminished  brigandage  in  the  province 
of  Naples.  The  law  of  6  July,  1871,  reduced  the  number  of  affrays 
in  Romagna."  ^  In  this  connection  there  are  a  number  of  things  to 
be  observed.  First,  with  regard  to  history  the  same  author  re- 
calls that  assaults  were  renewed  and  multiphed  notwithstanding 
the  most  severe  penalties.^  To  refer  to  the  single  striking  in- 
stance of  the  repressions  of  Sixtus  V,  history  shows  that  this  period 
of  extraordinary  and  savage  severity  had  scarcely  closed  (it  is 
well  known  that  when  there  were  no  bandits  to  exterminate,  the 
legates  of  Sixtus  V  and  his  governors  caused  the  corpses  of  persons 
of  low  degree  to  be  decapitated  in  the  cemeteries  and  sent  the  heads 
to  Rome  as  those  of  executed  criminals),  and  Sixtus  V  had  scarcely 
died,  when  all  the  chiefs  of  the  band  who  had  escaped  the  searches 
of  the  pontifical  legates  reappeared  as  by  magic.  Sacripante 
in  the  Maremmes,  Batistella  in  Latium,  Piccolomini  in  Umbria, 
reappeared  at  the  head  of  bands  which  seemed  to  spring  from 
the  earth  and  to  the  number  of  15,000  in  1595.  And  yet  execu- 
tions continued  on  a  large  scale.  The  Venetian  ambassador  to 
Rome  under  Clement  VII  wrote  as  follows:  "The  severity  of 
justice  is  such  that  the  executioner  has  difficulty  in  attending  to 
it.  Capital  punishment  is  inflicted  on  the  bandits  and  their 
accompUces;  and  yet  their  number  is  so  great  that  no  day  passes 
without  the  sight  of  the  heads  of  those  executed  being  brought 
in  or  their  corpses  exposed  on  the  bridge  of  Saint-Ange,  four,  six, 
twenty,  or  even  thirty  at  one  time  placed  in  a  row  side  by  side. 
It  is  estimated  that  there  have  been  more  than  one  thousand 
executions  from  the  pontificate  of  Sixtus  V  (1590)  to  the  present 
year  (1595).  And  a  strange  thing  is  that  it  is  said  that  this 
severity  has  only  caused  the  increase  of  brigandage."  ^  I  might 
offer  similar  answers  to  the  other  examples  cited  by  Tarde  in  main- 
taining the  efficacy  of  penalties,^  and  reply  that  being  exceptional 
measures  of  social  defense,  they  cannot  afford  very  serious  con- 
clusions in  the  matter  of  ordinary,  slow,  and  uncertain  penaliza- 
tion.    In  reaUty,  exceptional  laws  against  a  particular  form  of 

'  Lombroso,  "  L'incremento  del  delitto  m  Italia,"  p.  29.  Yet  in  his  "L'uomo 
delinquente,"  Sth  ed..  Vol.  Ill,  he  no  longer  classes  energetic  repression  among 
the  remedies  for  crime,  and  hence  participates  in  my  conclusions. 

*  Lombroso,  "L'uomo  delinquente,"  5th  ed..  Vol.  Ill,  pp.  8,  20. 

'  Dubarry,  "Le  brigandage  en  Italic"  (Paris,  1875),  pp.  105,  114.    To  the  same 
efiFect  is  Despine,  "Psychologic  naturelle,"  III,  p.  303. 
,     *  Tarde,  "Penal  Philosophy"  (Little,  Brown  &  Co.,  1912),  pp.  473,  et  seq. 


§  159]  LAW  OF  CRIMINAL  SATURATION  235 

ordinary  or  political  criminality  which  have  become  more  frequent 
at  certain  moments  have  contributed  to  maintain  the  illusion  on 
the  efficacy  of  punishment.  As  in  such  case  they  are  directed 
against  an  acute  manifestation  of  real  delinquency  or  of  pseudo- 
crime  and  as  this  access  is  of  itself  transitory  and  hence  destined 
to  rapidly  pass  away,  it  is  to  the  penalties  that  criminalists  (and 
public  opinion  more  fully)  freely  attribute  a  preventive  or  cura- 
tive power  which  they  do  not  really  possess,  by  virtue  of  reasoning 
"post  hoc  ergo  propter  hoc."  This  has  happened  and  still  happens 
in  the  case  of  brigandage  in  certain  provinces  of  Italy,  and  in  the 
case  of  anarchistic  attempts  in  many  countries  of  Europe.  Thus 
Garraud,  at  the  Congress  of  Geneva  (1896),  repeating  what  he 
had  already  declared  in  a  publication,^  and  yielding  to  the  com- 
mon illusion,  asserted  that  the  "application  of  exceptional  laws  re- 
sulted in  a  decrease  of  anarchistic  attempts"  (Ravachol,  Vaillant, 
Henry,  Caserio).  I  replied  to  him  that  this  efficacy  could  be 
attributed  neither  to  the  exceptional  laws  nor  to  the  ordinary 
penalties  because  these  penalties  are  stimulants  to  crime  in  the 
cases  where  political  or  religious  fanaticism  greedily  seeks  martyr- 
dom and  the  notoriety  which  it  brings;  or  else,  that  in  any  event, 
"these  anarchistic  attempts  were  symptoms  of  a  species  of  social 
fever  which  after  attaining  its  maximum  must  naturally  decline 
and  then  disappear  in  a  more  or  less  definitive  fashion."  ^  And  the 
facts  have  more  than  borne  me  out:  for  without  any  cessation  of 
the  regime  of  exceptional  laws,  there  was  a  recrudescence  of  an- 
archistic attempts  (Angiolillo,  Luccheni,  Acciarito),  a  year  or  two 
after  the  Congress  of  Geneva.^  Exaggerated  repression  is  not, 
therefore,  always  a  remedy:  but  further,  as  Carrara*  remarks, 
such  measures,  being  inspired  by  the  "jus  belli,"  cannot  and  do 
not  constitute  the  ordinary  process  of  the  punitive  function  which 
has  not  their  principle  of  action,  that  is,  the  instant  and  not  too 
scrupulous  exercise  of  the  rights  of  war,  with  extermination  of 
the  guilty  and  often  also  of  the  innocent.  Exceptional  laws 
should  never  be  other  than  an  entirely  transitory  regime. 

^  Garraud,  "L'anarchie  et  la  repression,"  §  95. 

^  "Actes  du  4®  congres  d'anthropologie  criminelle"  (Geneva,  1897),  p.  254, 
255. 

'  Dreyfus,  therefore,  utters  an  inexact  assertion  when  he  says  ("La  lutte  legale 
centre  I'anarchisme,"  in  the  "Rev.  Penit.,"  1896,  p.  753):  "  Whatever  opinion  one 
may  have  of  the  legality  of  exceptional  laws,  no  one  disputes  their  eflScacy."  No: 
they  are  illegal  and  ineffective. 

*  Carrara,  "Programma,"  §662,  N.  2. 


236  DATA  OF  CRIMINAL  STATISTICS   [§§  160,  161 

§  160.  Distinction  of  Fear  of  Punishment  and  Repressive  Penalties. 

It  should  especially  be  remarked  that  no  sufficient  distinction 
is  made  of  the  different  moments  of  the  application  of  penalty 
and  that  its  possible  effects  are  confused.  It  is  essential  to  dis- 
tinguish the  penalty  prescribed  in  the  Code,  from  that  applied  by 
the  judge,  especially  with  the  intervention  of  a  jury,  and  particu- 
larly from  that  applied  by  the  jailor.  That  punishment  should 
inspire  fear  in  a  criminal  who  is  already  in  custody  and  is  about 
to  be  convicted,  is  a  natural  fact,  but  it  does  not  in  any  way 
prove  the  efficacy  that  the  legislative  menace  should  have  had  in 
order  to  turn  him  from  crime. 

§  161.  Repressive  Force  of  Penalties;  a  Summary. 

If,  now,  to  the  natural  sentiment  of  vengeance,  —  to  the  his- 
torical traditions,  —  to  the  neglect  of  organic  and  psychic  differ- 
ences among  the  different  social  strata,  —  to  the  confusion  that 
reigns  between  exceptional  laws  and  the  regular  primitive  function 
and  between  the  different  moments  of  penal  application,  —  we 
add  the  force  of  a  fixed  habit  of  thinking  in  a  certain  way  and  the 
natural  tendency  of  the  administrators  of  the  penal  law  to  fix 
their  attention  exclusively  on  the  penalties;  if  we  consider,  further, 
how  easy  it  is  to  beheve,  with  the  common  opinion,  that  it  suffices 
to  draft  a  penal  law  in  order  to  get  a  remedy  for  social  infir- 
mities or  to  prevent  their  aggravation  —  then  we  have  little 
difficulty  in  understanding  how  this  exaggerated  confidence  in 
punishment  (which  is  constantly  belied  by  facts  and  by  psycho- 
logical observation)  always  persists  and  shows  itself  in  every 
theoretical  or  practical  discussion.  Certainly  human  activity, 
like  that  of  the  animals,  covers  the  whole  distance  between  the 
two  poles  of  pleasure  and  pain,  by  the  attraction  of  the  one  and 
the  repulsion  of  the  other.  Punishment,  a  form  of  pain,  is,  indeed, 
always  a  direct  determinant  of  human  conduct,  as  it  is  also  an  in- 
direct guide  of  conduct  as  a  legal  sanction,  by  unconsciously 
making  respect  for  law  deeper  and  stronger.  But  the  first  ob- 
servation, which  is  conformable  to  a  great  psychological  law,  shows 
that  punishment  is  in  itself  natural  and  that  it  is  absurd  to  assert 
its  absolute  inutihty  and  impotence  or  to  propose  its  abolition,  — 
that  observation  does  not  contradict  our  assertion  that  punish- 
ment is  of  but  very  feeble  efficacy  as  an  obstacle  to  crime. 

A  distinction  between  natural  penalty  or  sanction  and  social 


§  161]  LAW  OF  CRIMINAL  SATURATION  237 

penalty  or  sanction  shows  that  the  potency  of  natural  penalty, 
great  as  it  is,  evaporates  for  the  most  part  into  social  penalty. 
And  social  penalty  is,  more  or  less,  in  every  system  but  a  wretched 
imitation  or  caricature  of  natural  punishment.  The  mute  but 
inexorable  resistance  of  nature  to  every  act  which  transgresses 
her  laws  and  the  painful  consequence  resulting  to  the  doer  of  the 
act  really  constitute  an  extremely  effective  penal  system,  from 
which  man,  especially  in  the  less  developed  stages  of  his  inteUi- 
gence,  savagery,  and  infancy,  receives  continued  lessons  and  learns 
not  to  repeat  certain  harmful  actions.  This  "discipline  of  natural 
consequences,"  as  it  is  called  in  pedagogy,  is  certainly  a  good  edu- 
cational regime,  as  Rousseau  has  already  said,  and  as  it  has  been 
explained  by  Spencer^  and  Bain^  among  others.  Punishment 
in  this  natural,  spontaneous  form  draws  all  of  its  force  from  the 
inevitableness  of  its  consequences.  One  of  the  rare  observations 
of  practical  psychology  made  and  repeated  by  the  classical  crim- 
inalists is  that,  especially  in  the  case  of  the  death  penalty,  the 
certainty  of  punishment  has  more  power  than  its  severity.  To  this 
I  add  another  psychological  law,  that  a  shght  uncertainty  reduces 
to  a  greater  extent  the  repulsive  force  of  the  pain  feared  than  a 
great  uncertainty  reduces  the  seduction  of  the  pleasure  antici- 
pated. We  see  a  first  and  powerful  reason  for  the  weak  efficacy 
that  legal  penalties  are  capable  of  when  we  think  of  all  the  proba- 
bihties  of  escaping  them,  which  suggest  themselves  to  the  mind  of 
one  who  commits  an  anti- juridical  act.  The  probability  of  not 
being  discovered,  which  is  the  first  and  strongest  motive  to  the 
act  meditated;  the  probability  that  if  detected,  the  proof  will  be 
insufficient,  that  the  judges  will  be  lenient,  or  that  they  can  be 
deceived,  that  the  judgment  will  be  dissipated  in  the  turns  of  a 
labyrinthine  procedure,  that  a  pardon  will  come  to  prevent  the 
sentence  or  to  commute  it,  and  that  the  execution  of  the  punish- 
ment will  be  lessened  through  the  mechanism  of  a  conditional 
release,  and  so  on:  these  are  all  so  many  psychological  forces 
opposed  to  the  natural  fear  of  untoward  consequences,  forces 
which  are  unknown  to  natural  sanction  while,  on  the  contrary, 
they  destroy  the  prohibitive  efficiency  of  legal  penalty.  Further, 
there  is  another  psychological  condition  which,  while  not  leaving 

^  Spencer,  "Education"  (London,  1863). 

*  Bain,  "The  Science  of  Education."  Guyau,  "Education  et  heredite"  (Paris, 
1889),  makes  some  objections  to  this  pedagogical  doctrine  on  the  assumption  that 
it  is  desired  to  make  it  the  sole  and  exclusive  criterion  of  pedagogy  and  not  simply 
one  of  its  directing  rules. 


238  DATA  OF  CRIMINAL  STATISTICS  [§  161 

the  force  of  natural  penalty  intact,  almost  annihilates  that  of 
social  penalty.  This  is  the  improvidence  by  which  we  see  man 
defy  even  the  most  certain  natural  consequences  and  by  which 
these  consequences  are  p)owerless  against  certain  acts  which  are 
j)erilous  or  contrary  to  nature.  It  is  quite  another  thing  in  the 
antagonism  between  criminal  impulsion  and  penal  counter- 
impulsion  if  we  recall  that  even  aside  from  the  rage  of  passion 
criminals  and  even  occasional  delinquents  have,  in  common  with 
savages  and  children,  a  special  improvidence  which,  already  great 
in  the  inferior  classes  whence  they  generally  spring,  constitutes 
in  their  case,  as  demonstrated  by  criminal  anthropology,  a  specific 
mark  of  psychological  imperfection.^  Now,  while  a  very  small 
force  is  sufficient  to  produce  very  considerable  and  constant 
eflFects  when  it  operates  in  the  natural  way  of  organic  and  psychic 
laws,*  every  measure,  on  the  contrary,  which  departs  from  the 
natural  tendencies  of  man,  will  always  encounter  a  resistance 
which  will  combat  it  and  finally  master  it,'  Life  teaches  this  lesson 
every  day.  Women  whose  pelvic  bones  are  badly  formed  become 
mothers  in  spite  of  the  immense  danger  of  the  Caesarian  operation, 
and  sometimes  even  after  once  having  undergone  it.  Men 
consort  with  prostitutes,  and  often  without  any  precaution  taken 
and  without  being  deterred  by  the  fear  of  syphilis.  Despine 
narrates  that  at  Bilbao,  in  1866,  during  a  cholera  epidemic  many 
persons  brought  on  diarrhea  in  order  to  obtain  the  gifts  of  the 
charitable  society,  although  some  died  through  the  transformation 
of  diarrhea  into  real  cholera.^  Fayet,  in  a  study  on  the  pro- 
fessional statistics  of  persons  charged  with  crime  in  France  during 
a  period  of  twenty  years,  remarks  that  the  greatest  specific  and 
proportional  criminality  is  furnished  by  notaries  and  bailiffs 
("hussiers")  who  know  better  than  others  the  penalties  with  which 
the  law  menaces  the  guilty.^  To  this  we  may  add  that  in  the 
forgery  of  banknotes,  the  forgers  write  and  engrave  the  famous 
warning:  "The  law  punishes  forgers,  etc.";  and  in  spite  of  this 
stern  notice  they  proceed  with  the  criminal  work.  The  classical 
criminaHsts  themselves  declare  that  even  the  death  penalty  has 

*  See  the  proofs  of  this  improvidence  of  punishment  in  my   "Omicidio," 
pp.  521  et  seq. 

*  Gibbon,  "Decline  and  Fall  of  the  Roman  Empire,"  Chap.  XV. 

*  Beccaria,  "  Dei  delitti  e  delle  pene,"  §  2. 

*  Despine,  "Psychologic  naturelle,"  III,  p.  262. 

'  Fayet,  "Statistique  des  accuses,"  in  the  "Journal  des  ^conomistes,"  1847; 
to  the  same  effect  Fregier,  "Des  classes  dangereuses,  II,  III,  pp.  370-372. 


§  162]  LAW  OF  CRIMINAL  SATURATION  239 

no  real  eflScacy  for  the  intimidation  of  criminals,  if  only  for  the 
reason,  as  Montesquieu  and  Beccaria  have  said,  that  men  become 
accustomed  to  it  hke  anything  else.  This  is  confirmed  by  the 
striking  fact,  observed  by  the  Almoner  Roberts  and  by  the  magis- 
trate Berenger,  that  many  persons  sentenced  to  death  had  already 
witnessed  capital  executions,^  and  by  the  other  fact  brought 
to  light  by  Despine^  and  by  Angelucci^  that  murders  are  often 
committed,  in  the  same  town,  on  the  same  day,  and  sometimes 
in  the  same  place  that  capital  executions  are  conducted.  Man 
is  always  indentical  with  himself  and  certainly  no  j>enal  code, 
be  it  mild  or  harsh,  can  destroy  in  him  natural  and  invincible 
tendencies  such  as  the  attraction  of  pleasure  and  the  continued 
hope  of  impunity.  Again,  the  lasting  efficacy  of  any  measure,  in 
the  pohtical,  economic,  or  administrative  domain,  is  always  the 
inverse  ratio  of  its  violence  and  suddenness.'* 

§  162.  Moral  Prevention  of  Crime. 

Penal  law,  education,  and  pedagogy  were  formerly  based  on  the 
idea  of  conquering  the  human  passions  by  brute  force.  The  rod 
ruled  supreme.  It  began  to  be  understood  that  this  produced 
the  contrary  of  what  had  been  expected,  because  it  provoked, 
violence  or  hypocrisy,  and  the  severity  of  chastisement  was  sof- 
tened. It  is  only  now,  however,  that  it  is  being  discerned  in  peda- 
gogy how  advantageous  it  is  to  rely  simply  on  the  free  play  of 
natural  tendencies  and  of  physio-psychological  laws,  the  better  to 
regulate  individual  activity  practically.  Indeed,  since  everything 
in  pedagogy  comes  around  to  a  task  of  suggestion  and  since  sug- 
gestion is  the  passage  of  an  idea  from  one  brain  to  another  where 
it  takes  root,  it  is  clear  that  if  one  wishes  to  impose  an  idea  violently 
it  has  an  infinitely  small  chance  of  taking  root  and  organizing  in 
the  brain  of  another.  Persuasion  which  indicates  the  reasons 
and  advantages  of  the  idea  suggested,  together  with  care  to  avoid 
adverse  ideas,  has  an  incomparably  more  positive  and  surer 
efficacy  than  the  compression  which  coerces  contrary  tendencies 
and  the  constraint  which  tries  to  impose  the  ideas  or  the  tendencies 

1  Livi,  "La  pena  di  morte,"  R.  F.  (1876),  I,  478. 

2  Despine,  "Psychologic  naturelle,"  III,  pp.  370-372. 

'  Angelucci,  "Gli  omicidi  di  frontc  all'  eseciizione  capitale,"  R.  P.  Ill,  694. 
See  the  documents  estabUshing  this  "ineflScacy  of  penal  intimidation"  in  my 
"Omicidio,"  p.  368. 

*  Stuart  Mill,  "Fragments  in^dits  sur  le  socialisme,"  in  the  R.  P.  (March, 
1879). 


240  DATA  OF  CRIMINAL  STATISTICS  [§  163 

of  which  the  acquisition  is  desired.^  This  is  why  the  work  of  social 
defense,  to  speak  Uke  Romagnosi,^  should  be  less  a  material 
effort  of  repression  that  a  moral  effort  of  prevention  founded  on 
the  free  play  of  physio-psychological  and  sociological  laws.  It  is  a 
fact  that  violence  is  a  bad  remedy  for  violence  and  always  further 
incites  it.  In  the  Middle  Ages,  when  the  j>enal  reaction  was  so 
brutal,  the  criminal  acts  were  just  as  ferocious,  and  society  by 
giving  an  example  of  its  immoral  emulation  of  wrongdoers  moved 
pitiably  in  a  vicious  circle.  Even  to-day,  as  Ardigo  ^  remarks, 
in  the  lower  social  classes  the  man  who  is  often  violent  is  himself 
more  frequently  mistreated;  so  that  the  scars  of  criminals  are  a 
true  professional  characteristic. 

§  163.  Punishment  is  a  Negative  Repressive  Force. 

In  conclusion,  our  doctrine  on  the  efficacy  of  penalties  is  not, 
as  classical  criminaUsts  have  for  controversial  purposes  pretended 
to  think,  the  absolute  denial  of  their  efficacy,  but  it  is  the  denial  of 
the  common  and  inveterate  prejudice,  according  to  which  they 
are  the  best  and  most  useful  remedy  against  criminality.  We 
say  in  substance;  punishment,  as  a  means  of  repression,  has  rather 
a  negative  than  a  positive  efficacy.  This  is  not  merely  because 
it  has  not  the  same  hold  on  aU  categories  of  delinquents.  Its 
utility  is  not  in  the  imaginary  power  of  changing  an  anti-social 
being  into  a  social  man,  but  rather,  and  primarily,  in  avoiding 
the  very  considerable  evils  which  would  be  produced  by  im- 
punity, either  in  demoralizing  the  public  conscience  with  respect 
to  criminal  acts  or  in  further  increasing  the  improvidence  of  crim- 
inals or,  finally,  in  opposing  no  material  obstacle  to  the  repetition 
of  deUcts  by  convicts  who  are  at  least  rendered  harmless  during 
the  term  of  their  expiation.^  In  education  it  is  exactly  the  same. 
There  is  a  general  exaggeration  of  the  power  for  transformation 
possessed  by  penalties.     But  education,  which  from  earUest  age 

^  Even  in  taming  and  training  animals,  it  has  been  learned  by  experience  that 
violence  is  of  little  use  and  that  better  results  are  obtained  from  the  free  play  of 
basic  psychological  laws.  Le  Bon,  "Les  bases  psychologiques  du  dressage,"  R.  P. 
(December,  1894),  p.  596;  Letoumeau,  "L'6ducation  des  animaux,"  Chap.  I; 
"L'^volution  de  r^ducation"  (Paris,  1898). 

'  Romagnosi,  "  Genesi  del  diritto  penale,"  §  920. 

•  Ardigo,  "La  morale  dei  positivisti"  (Milan,  1879),  p.  528. 

*  There  is  a  similar  opinion  in  Notaristefani,  "La  funzione  psicologica  della 
pena,"  S.  P.  (July,  1894),  p.  617,  where  he  holds  "that  the  criterion  of  punishabil- 
ity is  found  in  the  necessity  of  avoiding  the  dangers  of  impunity."  To  the  same 
effect  is  Zerboglio,  "Le  pene  e  la  loro  efficaciA,"  id.  (September,  1897). 


§  163]  LAW  OF  CRIMINAL  SATURATION  241 

exercises  a  prolonged  action  and  therefore  a  greater  effect  than 
punishment,  owes  its  advantages  to  the  fact  that  it  prevents  the 
development  of  the  anti-social  tendencies,  the  germ  of  which  exists 
in  nearly  all  men,  rather  than  to  the  power  credited  to  it  of  creating 
social  tendencies  and  energies  in  individuals  who  have  not  inher- 
ited them  at  birth.  ^  This  negative  efficacy  of  punishment,  par- 
ticularly during  the  term  of  its  practical  execution,  has  caused 
us  to  adopt  the  views  which  we  shall  develop,^  namely,  that  we 
do  not  disapprove  the  tendency  of  the  classical  school  to  make 
penalties  milder  in  their  disciplinary  application  but  that  we  see 
a  complete  and  dangerous  error  in  the  continual  mitigation  which 
it  is  desired  to  extend  even  to  the  viewpoint  of  duration.  Indeed, 
we  understand  very  well  that  punishment  should  not  be  a  gratui- 
tous and  inhuman  torment;  but  we  are  opposed  to  this  upheaval 
of  every  principle  of  social  justice  which  would  have  prisons  more 
convenient  and  more  comfortable  than  dwellings  of  poor  and  honest 
folk  who  may,  so  long  as  they  remain  honest,  die  there  of  acute 
or  chronic  starvation  since  society  assures  them  food  and  lodging 
only  when  they  commit  culpable  acts.'  This  is  also  our  reason 
for  withholding  sympathy  from  the  cell  system,  until  now  so 
strongly  in  vogue  with  classical  criminaUsts  and  penalogists.  It 
is  inhuman,  stupid,  and  needlessly  expensive.  It  is  a  psychological 
absurdity  and  a  social  peril  that  punishment  for  ordinary  crim- 
inals with  congenital  tendencies  should  be  the  more  or  less  brief 
segregation  of  the  convict  temporarily  placed  outside  of  civil 
life.  Yet  such  is  the  idea  with  which  the  new  Italian  Code  is 
inspired.  Without  mentioning  the  disastrous  effects  of  short 
sentences,  inducing  corruption  and  habitual  criminality  (effects 
now  unanimously  deplored  by  penologists),  it  is  evident  that  we 
thereby  take  from  punishment  the  surest  part  of  its  negative 
efficacy  against  atavistic  criminaUty,  the  value  it  at  least  has  of 
preventing  the  repetition  of  criminal  attacks  during  the  whole 
period  of  expiation. 

^  Ferri,  "Socialismo  e  criminalilA,"  Cap.  III. 

*  G.,  P.  IV.  post. 

'  Ferri,  "Lavoro  e  celle  dei  condamnati"  (Rome,  1886). 


CHAPTER  V 

EQUIVALENTS    FOR  PUNISHMENT 

Equivalents  for  punishment  —  Examples  in  the  economic,  political,  scientific, 
administrative,  religious,  family,  and  educational  orders.  Alcoholism. 
Vagabondage.     Abandoned  infancy. 

§  164.  Need  of  Other  Means  of  Social  Protection  than  Punishment. 

It  being  established  that  punishment,  far  from  being  the  conve- 
nient panacea  which  it  seems  to  classical  criminaUsts,  legislators, 
and  the  pubhc,  has  but  very  limited  power  to  combat  crime,  it 
is  natural,  therefore,  that  the  criminal  sociologist  should  seek  other 
means  of  defense  from  the  positive  observation  of  facts  and  of 
their  natural  origin.  The  thousand  experiences  of  daily  life,  of 
the  family,  of  the  school,  of  associations,  as  the  history  of  the 
vicissitudes  of  societies,  teach  us  that,  in  order  to  render  the  ex- 
plosions of  the  passions  less  pernicious,  it  is  better  to  approach 
them  from  the  flank  at  their  very  source  than  to  attack  them 
from  the  front.  The  intelligent  husband  in  protecting  the  fidehty 
of  his  wife  counts  on  something  quite  different  from  the  articles 
of  the  code  prohibiting  adultery.  Bentham  relates  that  in  England 
by  combining  the  transportation  of  passengers  with  the  postal 
service  the  annoying  delays  due  to  drunken  couriers,  against 
whom  heavy  fines  were  useless,  were  completely  done  away  with. 
Certain  discreet  shelters  arranged  in  convenient  places  contribute 
more  to  the  cleanUness  of  cities  than  fines  and  arrests.  The 
head  of  an  industry  obtains  from  his  workmen  more  assiduous 
labor  and  a  more  satisfactory  production,  by  interesting  them, 
if  only  to  a  sUght  degree,  in  the  profits  than  by  fines  and  punish- 
ments. In  the  German  universities,  academic  jealousy  and  in- 
tolerance has  been  largely  neutralized  by  rewarding  the  professors 
in  proportion  to  the  number  of  their  students,  and  hence,  by 
interesting  the  faculties  in  calling  and  favoring  the  best  masters 
in  order  to  attract  a  greater  number  of  students. 

Again,  the  activity  and  zeal  of  professors,  magistrates,  and 
employees  is  excited  by  increasing  their  emoluments,  not  alone  on 
account  of  seniority  but  on  account  of  the  progress  proved  by 


§165]  EQUIVALENTS  FOR  PUNISHMENT  243 

their  publication,  by  the  number  of  decisions  left  unchanged,  or 
proceedings  unreversed.  Every  one  knows  that  the  workman 
labors  more  when  he  is  paid  by  the  job  than  by  the  day,  and 
many  manufacturers  abuse  this  fact  to  exploit  his  working 
capacity.  The  troublesome  and  destructive  activity  of  children 
is  better  regulated  by  amusing  them  with  suitable  games  than 
by  striving  to  stifle  or  punish  it,  to  the  great  injury  of  physical 
and  moral  hygiene.  In  the  same  way,  labor  in  insane  asylums 
and  prisons  is  a  much  more  effective  instrument  of  discipHne  and 
order  than  chains  and  irons.  The  Minister  of  PubUc  Instruction, 
Villari,  admitted,  in  the  session  of  14  March,  1891,  that  the  sup- 
pression of  antiquities  and  their  sale  abroad,  which  could  not  be 
prevented  by  the  strictest  penalties,  had,  on  the  contrary,  been 
prevented  by  the  offer  of  a  reward  to  the  finder  of  such  an  object 
who  faithfully  reported  it.  It  is  thus  again  that  a  well-advised 
housewife  procures  a  less  breakage  of  dishes  by  her  servants  when 
she  allows  them  a  shght  increase  of  wages  intended  to  pay  for 
broken  dishes  and  thus  induces  them  to  use  more  care.  Briefly: 
one  obtains  more  from  men  by  flattering  their  self-esteem  or  ap- 
pealing to  their  interest  than  by  using  the  constraint  of  authority. 
While  Romagnosi  was  right  when  he  said  penal  counter-impulsions 
should  be  opposed  to  criminal  impulsions  in  the  social  order,  yet 
it  is  more  exact  to  say  that,  instead  of  relying  on  the  acting  of 
direct  counter-impulsions  it  avails  more  to  first  seek  the  suppres- 
sion and  indirect  prevention  of  criminal  impulsions,  because, 
when  once  developed,  it  is  futile  to  oppose  them  with  punishment 
which  has  so  Httle  hold  and  which  is  only  applied  after  it  has 
been  ineffective  as  a  legislative  threat.  Now,  since  punishment 
as  an  instrument  of  social  defense  answers  its  purpose  poorly, 
recourse  must  be  had  to  other  measures  which  may  be  substituted 
for  it  in  satisfaction  of  the  social  need  of  order. 

§  165.  Penalties.    Substitutes. 

From  this  springs  the  idea  which  I  have  called  the  equivalents 
of  penalties  ("sostituiti  penah" — penal  substitutes).  While 
the  social  edifice  will  not  be  radically  changed  in  its  economic, 
and  hence  in  its  moral,  political,  and  judicial  bases  in  accord  with 
the  data  and  conceptions  of  socialistic  sociology,  we  are  certain 
that  wherever  these  measures  shall  be  able  to  exert  their  efficient 
power  for  prevention,  no  crime  will  be  committed.  That  is  to 
say,  that  the  prevention  of  crime  will  be  attained  not  through 


244  DATA  OF  CRIMmAL  STATISTICS  [§  165 

penalties,  but  through  these  measures  which  within  the  hmits 
of  their  eflScacy  are  substitutes  for  penalties  and  not,  as  one  of  my 
benevolent  critics  preferred  to  think,  agencies  cooperating  with 
penalties.^  Since  there  is,  as  we  know,  a  law  of  criminal  satura- 
tion by  virtue  of  which  there  is  in  every  social  medium  a  minimimi 
of  natural  and  atavistic  criminahty  due  to  anthropological  factors 
—  because  perfection  does  not  exist  in  this  world,  —  for  this  mini- 
mum, penalties,  transformed  according  to  the  criteria  which  we  shall 
see  later,  wiU  be  the  last  and  indispensable  obstacle  to  the  inevi- 
table and  sporadic  manifestations  of  criminal  activity.  The 
equivalents  of  penalty,  once  assimilated,  thanks  to  the  new  les- 
sons of  criminal  sociology,  by  the  convictions  and  habits  of  legis- 
lators, will  be  particular  antidotes  against  the  social  factors  of 
crime.    They  will  serve  as  a  practical  and  gradual  transition  in 

^  "Rassegna  settimanale"  (September,  1880),  Vol.  VT,  No.  140;  and  similarly, 
Garofalo,  "  Criminology  "  (Little,  Brown  &  Co.,  1914),  pp.  372,  et  acq.  WTien  I  pub- 
lished my  theory  of  the  equivalents  of  penalty  in  the  "  Archivio  di  psichiatria  "  (1880), 
pp.  67  and  214;  Turati,  "Delitto  e  questione  sociale"  (Milan,  1882),  made  me  the 
objection,  that  such  a  system  is  too  fragmentary,  since  it  does  not  remove  the  first 
and  universal  cause  of  crime,  poverty:  hence,  he  said  that  the  radical  solution  of  the 
penal  system  is  socialism  which  by  suppressing  poverty  suppresses  crime.  I  an- 
swered him  in  my  work  "Socialismo  e  criminalita,"  where  conceding  the  basic  truth 
of  the  socialistic  idea,  I  opposed,  on  the  one  hand,  whatever  of  Utopian  there  was  in 
the  then  sociahsm  which  was  not  yet  inspired  in  Italy  by  the  scientific  positivism  of 
the  Marxian  sociology:  and,  on  the  other  hand,  I  maintained  that  the  elimination  of 
poverty  would  not  bring  about  the  complete  disappearance  of  all  crime:  since  one 
might  suppress  the  epidemic  forms  of  crime  but  not  the  acute  and  sporadic  forms. 
Co/ayanm  intervened  in  our  controversy  "L  socialismo"  (1st  ed.,  Catane,  1884;  2d 
ed.,  Palermo,  1898),  but  with  outoriginality  of  view  and  confined  himself  to  the 
relation  between  biology  and  socialism.  WTien  I  had  studied  and  understood  the 
inductions  of  the  Marxian  sociology  and  when  I  saw  that  it  eliminated  the  Uto- 
pian part  of  socialism  which  I  had  fought  in  1883,  I  openly  accepted  its  theoretical 
and  practical  conclusions.  I  even  proved  that  Marxism  (economic  transformation) 
is  in  perfect  accord  with  biological  transformation  (Darwin)  and  with  universal 
transformation  (Spencer).  See  my  work  "Socialismo  e  scienza  positiva."  I  there 
again  maintained  my  thesis  that  socialistic  organization  should  cause  the  disap- 
pearance of  the  epidemic  forms  but  not  of  the  acute  and  sporadic  forms  of  crim- 
inahty. I  held,  also,  that  in  the  transition  period  between  bourgeois  civilization 
and  socialistic  civilization,  the  system  of  equivalents  for  jjenalties  was  a  practical 
necessity  which  moreover  furthered  the  evolution  of  society  towards  the  socialistic 
phase  by  eliminating  the  barbarous  fetishism  of  penal  repression. 

The  theory  of  equivalents  for  penalties  has  received  such  a  consecration  (for 
example,  England  which  experienced  a  reduction  of  criminality,  thanks  only  to 
its  institutions  for  social  prevention)  that  from  that  time  the  theorists  of  socialism 
are  agreed  in  accepting  my  ideas  on  this  point,  whenever  they  approach  the  prob- 
lem of  crime  formerly  entirely  neglected  by  them. 

See  Ferri,  "Recenti  pubhcazioni  di  socialismo,"  S.  P.  (October,  1898),  cited 
by  Lichtenberger,  "Le  sociaUsme  et  la  revolution  frangaise"  (Paris,  Alcan,  1899), 
p.  193. 


§165]  EQUIVALENTS  FOR  PUNISHMENT  245 

reaching  this  social  metamorphosis  in  the  name  of  which  it  will 
not,  however,  be  legitimate  to  oppose  these  measures  by  treating 
them  as  mere  palliatives  and  by  rejecting,  with  the  impatience 
of  generous  aspiration,  that  practical  patience  which  submits  to 
the  tyranny  exercised  by  the  law  of  evolution  even  in  social  life. 
Social  organisms,  like  animal  organisms,  are  capable  only  of  partial 
transformations,  which,  however,  in  accumulating  and  mutually 
supplementing  each  other,  constitute  the  different  phases  of  social 
evolution.  These  equivalents  for  penalty  should  not,  however, 
be  the  destination  of  a  superficial  social  reform,  but  rather  the  point 
of  departure  in  passing  to  a  social  order  very  different  from  that 
of  today.  The  only  justification  of  the  theory  of  equivalents 
for  penalty  is  this  new  order,  and  its  only  efficient  utility  is  attain- 
ing that  order;  and  thus,  by  adopting  the  collective  ownership  of 
the  means  of  production  and  labor,  and  by  thus  assuring  really 
human  conditions  of  life  to  every  human  being  who  shall  have  done 
his  duty  (children  and  the  sick  excepted)  in  furnishing  his  daily 
toil  in  some  form  or  other,  will  be  accompHshed  the  drying  up,  as 
Fauchet  says,  of  "three  great  springs  of  crime:  extreme  riches, 
extreme  poverty,  and  idleness." 

To  propose  these  equivalents  for  penalty  amounts  to  saying 
this :  It  is  necessary,  in  legislative  dispositions  (political,  economic, 
civil,  administrative,  and  penal),  from  the  great  institution  down 
to  the  slightest  details  of  its  existence,  to  give  the  social  organism 
an  orientation  such  that  human  activity,  —  instead  of  being 
uselessly  threatened  with  repression  shall  be  constantly  guided 
in  an  indirect  manner  into  non-criminal  ways,  and  such  that  a 
free  overflow  shall  be  offered  to  the  energies  and  needs  of  the  indi- 
vidual whose  natural  tendencies  will  be  hurt  as  little  as  possible 
and  who  will  be  spared  as  much  as  possible  the  temptations  and 
occasions  of  crime.  This  fundamental  idea  of  the  equivalents 
for  penalties  shows  how  necessary  to  the  sociologist  and  to  the 
legislator  is  the  preparation  in  biological  and  psychological  knowl- 
edge on  which  Spencer  rightly  insisted.^  The  basic  idea  of  the 
equivalents  for  penalty,  rather  than  their  explanatory  and  detailed 
enumeration  (incomplete  and  open  to  discussion  in  detail)  should 
be  present  to  the  mind  when  it  is  sought  to  judge  their  theoretical 
and  practical  value  as  a  part  of  the  general  doctrine  of  criminal 
sociology.  On  the  efficacy  of  a  given  one  of  these  equivalents,  I 
may  find  myself  in  more  or  less  accord  with  those  who  have  ex- 
^  Spencer,  "Introduction  to  Social  Sciences,"  Chap.  XIV,  XV. 


246  DATA  OF  CRIMINAL  STATISTICS  [§  166 

amined  and  discussed  them  singly,  and  I  shall  take  notice  presently 
of  their  observation.  But  in  any  event,  it  is  a  fact  that  this 
theory  has  been  admitted  in  substance  by  criminal  sociologists, 
with  the  exception  of  those  who  have  asserted  that  they  "do 
not  believe"  in  the  efficacy  of  the  equivalents^  and  of  those 
who  have  confined  themselves  to  miserable  Byzantine  discussions 
as  to  whether  the  equivalents  for  penalties  belong  to  criminal  sci- 
ence or  to  the  art  of  government  and  politics.  This  is  especially 
true,  not  when  the  doctrine  is  taken  in  an  absolute  sense  considered 
as  an  imiversal  panacea  for  crime,  but  when  it  is  presented,  as  I 
have  presented  it  from  the  beginning,  as  an  orientation  and  a 
habit  of  the  legislative  and  administrative  mind,  whereby  the 
ancient  fetishism  of  punishment  is  rejected  and  whereby,  when 
there  is  question  of  facing  some  phenomena  of  social  pathology, 
the  legislative  and  administrative  wisdom  is  not  Hmited  to  the 
enactment  of  new  penalties  or  the  aggravation  of  existing  penalties, 
but  occupies  itself  with  the  search  for  the  causes  of  these  phenom- 
ena and  attempts  to  eliminate  them,  to  flush  them  away  and  dilute 
them  in  order  more  efficaciously  to  act  upon  their  consequences.* 

§  166.  Penal  Substitutes. 

Let  us  see  some  examples.  Free  trade  (aside  from  the  transi- 
tory necessities  for  the  protection  of  a  given  manufacturing  or 
agricultural  industry),  since  it  more  readily  avoids  hard  times  and 
abnormal  rises  in  the  price  of  foodstuffs,  both  of  which  have  so 
direct  an  influence  on  crimes  against  property,  prevents  a  mass  of 
criminal  disorders  better  than  does  the  Penal  Code.  On  the  con- 
trary, the  permanent  monopoly  of  certain  industries  not  only 
multipUes  infractions,  but  foments  other  crimes  against  property 
and  against  the  person,  as  was  seen  in  Sicily  a  few  years  ago  when 
the  cultivation  of  tobacco  was  restricted.' 

•  Vidal,  "Principes  fondamentaux  de  la  ptoalit6"  (Paris,  1890),  pp.  469 
et  seq. 

*  Garofalo,  "  Criminalogia,"  2d  ed.,  pp.  199  et  seq.;  Dalle  Mole,  "Wagne- 
rismo  penale"  (Vicenza,  1887),  pp.  46  et  seq.;  Tarde,  "La  philosophic  p^nale," 
77  et  seq.;  De  Mattos,  "La  pazzia,"  p.  186;  Marro,  "I  caratteri  dei  delinquenti" 
pp.  (Turin,  1887),  Cap.  XXVIII;  and  especially  Lombroso,  "L'uomo  delinquente," 
6th  ed.,  Turin,  1897),  Vol.  Ill,  pp.  312  et  seq.  In  a  recent  study  by  Richard, 
"La  responsibilite  penale  et  les  equivalents  de  la  peine,"  R.  P.  (September,  1899), 
the  doctrine  of  equivalents  for  penalties  has  received  a  notable  theoretical  contri- 
bution, precisely  "as  an  application  of  the  synthetic  researches  of  sociology  to  the 
art  of  legislation  as  a  whole." 

'  These  words  which  are  found  in  my  first  edition  (1881),  p.  90,  had  a  tragic 
confirmation  in  the  popular  movements  of  April  and  May,  1898,  brought  about 


§§  167,  168]  EQUIVALENTS  FOR  PUNISHMENT  247 

§  167.  Penal  Substitutes.    Economic  Order.    Freedom  of  Emigration. 

Freedom  of  emigration,  viewed  from  this  standpoint  (that  is, 
disregarding  every  higher  consideration  of  its  natural  and  social 
causes),  aside  from  the  fact  that  it  is  the  effect  of  the  conquest 
of  free  circulation  which  capitalists  have  tried  to  oppose  through 
fear  of  scarcity  of  labor,  is  also  a  real  safety  valve  which  frees  the 
coimtry  from  elements  easily  drawn  into  crime,  through  poverty 
and  badly  balanced  energies.  Thus,  in  Ireland,  the  decrease 
of  habitual  criminals  has  been  due  less  to  the  illusory  wonders  of 
the  penitentiary  system  than  to  the  emigration  of  liberated  con- 
victs, which  increased  to  forty-six  per  cent.^  In  Italy,  also, 
studying  the  criminahty  of  recent  years,  I  have  had  occasion  to 
indicate  among  the  principal  causes  for  the  decreasing  oscillations 
of  1881  and  the  following  years,  not  only  the  mild  winters  and  the 
good  crops  of  these  same  years  but  also  the  extraordinary  increase 
of  emigration. 

§  168.  Penal  Substitutes.    Economic  Order.    Taxation. 

Smuggling,  which  for  centuries  resisted  the  most  atrocious 
penalties,  such  as  amputation  of  the  hands,  and  death  ^  and  in 
our  day  imprisonment  and  volleys  of  customs  officers,  decreases 
visibly,  thanks  to  the  lessening  of  the  duties,  as  shown  in  the  case 
of  France  by  Villerme  and  others.'  Adam  Smith  was  right 
when  he  declared  that  "a  law  which  punishes  smugghng  after 
creating  the  temptation,  and  which  in  making  the  temptation 
stronger  increases  the  penalty,  is  contrary  to  every  principle  of 
justice,"  and  when  he  controverted  Jeremy  Bentham  who,  start- 
ing with  the  idea  that  the  penalty  should  be  heavier  in  the  case  of 
less  desirable  crimes,  advocated  the  severest  penalties  for  smug- 
by  the  enhancement  in  the  price  of  bread  and  by  the  failure  of  the  crops  aggregated 
by  a  tariff  of  seventy-five  francs  per  ton,  the  highest  tarifif  on  bread  that  has  ever 
existed  in  the  civilized  world. 

See  Giretti,  "Elusion  e  danni  del  protezionismo,"  G.  E.  (September,  1898); 
and  in  the  opportunist  sense,  Colajanni,  "  Sperimentalismo  doganale,"  in  the 
"Nuova  antologia"  (1st  September,  1898). 

For  an  appreciation  of  these  facts,  Pareto,  "  La  liberty  ^onomique  et  les  6v6ne- 
ments  d'ltalie"  (Lausanne,  1898). 

1  "Revista  di  discipHne  carcerarie"  (1877),  p.  39;  Beltrani  Scalia,  "La  riforma 
penitenziaria  in  Italia,"  p.  194. 

*  Tissot,  "Introduction  philosophique  a  I'etude  du  droit  p6nal"  (Paris,  1874), 
p.  109. 

'  VillermS  fils,  "Des  douanes  et  de  la  contrebande"  (Paris,  1851). 


248  DATA  OF  CRIMINAL  STATISTICS  [§§  169,  170 

gling.^  A  system  of  imp)osts,  which  would  reach  wealth  accord- 
ing to  its  visible  signs  (rather  than  objects  of  prime  necessity), 
and  which  would  be  progressive  in  proportion  to  income,  would 
ruin  these  systematic  frauds  that  penalties  have  been  unable 
to  prevent,  and  would  correct  the  empirical  and  exaggerated  fiscal 
system,  which  is  a  perpetual  cause  of  resistance  to  the  public 
power  and  of  outrages  and  the  like.^  Fregier  also  speaks  of 
different  criminal  industries,  maintained  by  the  octrois,  which 
would  disappear  with  these  imposts,  as  unjust  as  they  are 
absurd.'  So,  also,  although  Allard  had  stated  that  the  reduc- 
tion of  the  duties  on  articles  of  prime  necessity,  aside  from  its 
good  effects  economically,  would  moreover  diminish  commercial 
frauds,*  the  oflficial  report  of  1872  on  French  statistics,  noting  the 
increase  of  these  very  frauds,  invoked  a  more  severe  repression  as 
a  suitable  panacea.  To  this  Mercier  replied  that  since  these 
crimes  are  the  result  of  excessive  taxation,  the  effect  cannot  be 
suppressed  without  suppressing  the  cause.^ 

§  169.  Penal  Substitutes.    Economic  Order.    Public  Works. 

Pubhc  improvements  in  years  of  scarcity  and  in  severe  winters, 
by  supplying  work  for  the  indigent,  prevent,  unless  too  long 
delayed,  the  increase  of  crimes  against  property,  the  person,  and 
public  order.  There  was  a  striking  proof  of  this  in  France  in 
1853-54-55,  a  period  when,  in  spite  of  an  agricultural  crisis, 
there  was  no  need  to  deplore  an  enormous  increase  of  crimes 
against  property,  such  as  had  occurred  during  the  hard  times  of 
1847.  This  result  was  due  to  a  provident  government  which 
knew  how  to  provide  labor  in  time  and  on  a  large  scale. 

§  170.  Penal  Substitutes.    Relation  of  Alcohol  to  Crime. 

Imposts  and  other  indirect  restrictions  brought  to  bear  on  the 
manufacture  and  sale  of  alcohol  would  be  much  wiser  than  im- 
posts on  salt  and  flour,  which  further  impoverish  the  poorest 
classes  who  are  most  easily  drawn  to  crime.     The  influence  of  acute 

1  Smith,  "Wealth  of  Nations,"  Lib.  V,  Chap.  H. 

*  Bentkam,  "Theory  of  Punishment,"  Lib.  I,  Chap.  V. 

'  Fioretti,  "Pane,  govemo  e  tasse  in  ItaHa"  (Naples,  1898);  Pinsero,  "Miseria 
e  delitto,"  S.  P.  (June  and  August,  1898);  CapUan,  "Le  r6Iedes  microbes  dans  la 
soci^e,"  R.  S.  (10  March,  1894). 

*  Allard,  J.  E.  (15  September,  1898),  p.  188. 

.    '  Mercier,  "La  justice  criminelle  et  les  impots  indirects,"  J.  E.  (October,  1854). 


§170]  EQUIVALENTS  FOR  PUNISHMENT  249 

and  chronic  alcoholism  (wines  and  Uquors)  on  the  increase  of  crime 
is  a  very  serious  question.  In  France,  for  example  (and  similar 
figures  might  be  cited  for  many  other  countries),  the  figures  relating 
to  alcohol,  crime,  suicide,  and  insanity  show  an  horrible  agreement. 
For  the  whole  of  France  the  annual  per  capita  consumption  of 
wine  estimated  in  1829  at  sixty-two  liters,  exceeded  one  hundred 
liters  in  1869;  in  Paris  it  rose  from  one  hundred  and  twenty 
liters  in  1819-1820  to  two  hundred  and  seventeen  Uters  in  1872 
and  two  hundred  and  twenty-seven  liters  in  1881.^  Alcohol 
shows  an  even  greater  increase.  The  individual  consumption, 
which  was  ninety- three  hundredths  liters  for  France  in  1829,  was 
three  and  twenty-four  hundredths  in  1872  and  three  and  forty 
hundredths  in  1895,  with  still  higher  figures  in  some  cities,^ 
The  manufacture  of  alcohol  (from  fruits,  grains,  beets,  etc.), 
which  amounted  to  four  hundred  seventy-nine  thousand  six  hun- 
dred and  eighty  hectoUters  for  the  whole  of  France  in  1843, 
reached  one  million  three  hundred  nine  thousand  five  hundred 
and  sixty-five  hectoHters  in  1879,  two  milhon  and  four  thousand 
in  1887,^  two  million  four  hundred  seventy-six  thousand  three 
hundred  and  eighty-seven  in  1893,  and  two  million  twenty- two 
thousand  one  hundred  and  thirty-four  in  1896.*  As  a  parallel, 
we  have  seen  the  growth  of  the  number  of  delicts  and  crimes  in 
France  and  the  increase  of  suicides  from  fifteen  hundred  and  forty- 
two  in  1829  to  nine  thousand  two  hundred  and  sixty-three  in 
1895.  Moreover,  I  have  demonstrated  by  a  special  graphical 
table  in  the  "Archivio  di  psichiatria"  that  there  is  observed  in 
France  (notwithstanding  certain  annual  exceptions)  an  agreement 
between  the  increase  and  decrease  of  homicides  and  intentional 
assaults,  and  the  greater  or  lesser  production  of  wine,  especially 
in  years  of  great  variation.  This  is  noticeable  in  the  years  of 
poor  vintage  (1853-54-59-^7-73-78-79-80),  which  were  followed 
by  a  corresponding  decrease  in  crime,  particularly  in  woundings: 
and  vice  versa  the  years  of  abundance  (1850-56-57-58-62-63- 

1  Caudelier,  "  Des  boissons  alcooliques  en  Belgique  et  leuraction  sur  I'appau- 
vrissment  du  pays"  (Brussels,  1884). 

2  Block,  "Statistique  de  la  France"  (Paris,  1895),  II,  p.  1405. 

'  Lunier,  "Comptes  rendus  du  congres  contre  ralcooHsme"  (Paris,  1879), 
p.  135.  For  later  figures,  see  Yvernh,  "Des  rapports  entre  I'augmentation  de 
I'alcool  et  le  develloppement  de  la  criminalite  et  de  la  folie,"  "International  Con- 
gress on  Alcoholism"  (Paris,  1889),  and  A.  A.  C.  (November,  1889),  and  particu- 
larly the  report  of  Senator  Claude,  "Sur  la  consommation  de  I'alcool  en  France" 
(Paris,  1887),  with  an  atlas,  a  work  rich  in  statistical  and  legislative  data. 

*  "La  production  annuelle  des  alcools,"  R.  S.  (21  August,  1897),  p.  iS5. 


250 


DATA  OF  CRIMINAL  STATISTICS 


[§170 


65-68-74-75)  were  followed  by  an  increase  of  delicts.^  It  was 
thus  that  I  then  also  showed,  together  with  the  recrudescence  of 
sanguinary  crimes  in  the  month  nearest  the  vintage,  the  mutual 
dependance  of  two  phenomena,  wine  and  crime,  already  indicated 
by  the  daily  experience  that  Pierquin,  among  others,  discussed, 

^  Here  are  the  figures  which  would  be  more  convincing  if  represented  graphi- 
cally: for  wine,  they  are  taken  from  the  "Statistique  de  la  France,"  by  Block 
(11,  p.  74),  and  from  the  agricultural  statistics,  "Recoltes  de  la  France";  for 
alcohol,  they  are  taken  from  the  work  of  Lunier,  "La  consommation  des  boissons 
alcooliques"  in  the  "Journal  de  la  soci6t6  de  statistique  de  Paris"  (Paris,  1878), 
p.  34:  for  the  delicts,  from  the  annual  judicial  statistics: 


Affairs 

Francb 

(homicides,  simple 

Affaibs 

Alcohol 

VlNTAQB 

woundings  and 

(for  woundings  and 

Subject  to  imports 

Millions  of 

those    which    are 

intentional   blows) 

on  consumption 

hectoliters 

serious  or  followed 
by  death)  judged 

judged  by  the  cor- 

rectional  tribunals 

Year 

by  the  Assizes. 

1849 

35.5 

598 

13,176 

1850 

585 

4.47 

583 

14,153 

1851 

622 

39.4 

527 

13,684 

1852 

648 

28.4 

432 

13,701 

1853 

644 

22.6 

374 

12,083 

1854 

601 

10.7 

231 

9,599 

1855 

714 

15.1 

236 

9,402 

1856 

768 

21.2 

240 

10,565 

1857 

825 

35.4 

221 

11,907 

1858 

842 

46.8 

267 

14,246 

1859 

823 

29.8 

288 

14,083 

1660 

851 

39.5 

231 

12,737 

1861 

882 

29.7 

218 

13,109 

1862 

857 

37.1 

277 

14,473 

1863 

870 

51.3 

220 

15,166 

1864 

870 

50.6 

248 

16,695 

1865 

873 

68.9 

257 

17,462 

1866 

964 

63.8 

246 

17,560 

1867 

989 

39.1 

235 

16,189 

1868 

971 

52.0 

263 

17,839 

1869 

1,008 

72.7 

295 

18,467 

1870 

882 

53.5 

261 

12,765 

1871 

1,013 

392 

12,687 

1872 

755 

315 

16,128 

1873 

934 

263 

15,829 

1874 

970 

258 

17,064 

1875 

1,010 

88.2 

276 

18,419 

1876 

1,004 

44.7 

282 

18,908 

1877 

55.9 

228 

18,749 

1878 

49.2 

292 

18  666 

1879 

25.9 

275 

18,424 

1880 

29.6 

298 

17,747 

§170]  EQUIVALENTS  FOR  PUNISHMENT  251 

and  of  which  the  newspapers  were  full  whenever  days  of  plenty 
brought  about  a  recrudescence  of  woundings.^ 

Even  aside  from  the  annual  frequency,  the  relations  between 
alcohoHsm  and  crime  are  abimdantly  proved  in  a  way  that  con- 
firms what  Morel  says:  "That  alcoholism  produces  a  demoralized 
and  brutalized  class  of  wretches  characterized  by  a  precocious 
depravation  of  instincts  and  abandonment  to  the  most  shameful 
and  dangerous  acts."  ^  I  therefore  consider  that  it  is  useless  for 
me  here  to  enlarge  on  the  data  that  legal  medicine  and  psycho- 
pathology  furnish  us  on  the  relation  between  alcohohsm  and 
crime  as  well  as  the  statistical  data  relative  to  the  number  of  drink- 
ers recorded  in  the  mass  of  delinquents  and  the  number  of  cases  of 
drunkenness  and  bar-room  quarrels  recorded  by  the  statistics  as 
the  causes  of  crimes.  The  causal  connection  between  alcohoHsm 
and  crime  has  recently  been  disputed  with  statistical  arguments. 
Tammoseo  began  with  the  observation  that  the  countries  of  Europe 
where  the  most  alcohol  is  consumed  show  a  less  proportion  of 
sanguinary  crimes,  and  he  says  the  same  of  the  several  provinces 
of  Italy.  But  what  gives  less  force  to  his  observations  is  that  he 
was  content  to  deny  that  "the  abuse  of  Uquor  is  the  most  active 
cause  of  crime."  ^  Afterwards,  Fournier  de  Flaix,  maintaining 
the  same  thesis  with  the  same  statistical  arguments  and  recogniz- 
ing that  "alcohol  is  a  special  scourge  for  the  individual  who 
abuses  it,"  came  to  the  conclusion  that  "alcohohsm  is  not  a  scourge 
that  threatens  the  European  race,"  and  reasserted  that  the  nations 
which  consume  most  liquor  show  a  less  number  of  crimes  and 
particularly  of  sanguinary  crimes.*  Lastly,  Colajanni,  without 
citing  either  Tammoseo  or  Fournier  de  Flaix,  developed  the  same 
thesis,  sustaining  it  principally  on  the  thoroughly  compiled  statis- 
tical data  of  Kummer.  His  conclusion  is  that  "there  is  no  regu- 
larity, constancy,  and  universality  of  relations,  in  coincidence  and 
succession,  between  alcoholism,  delinquency,  and  suicide;  and, 
hence,  that  it  is  impossible  through  the  laws  of  statistics  to  es- 
tablish a  relation  of  cause  and  effect  between  these  things."  ^ 
Disregarding  the  errors  of  fact  contained  in  the  monograph  of 

1  Pierquin,  "Traitd  de  la  folic  des  animaux"  (Paris,  1839),  II,  369. 

*  Morel,  "Traite  de  degenerescence  de  I'esp^ce  humaine"  (Paris,  1857), 
p.  390. 

»  Tammeo,  "II  delitto,"  R.  C.  (1882),  pp.  56,  57. 

*  Fournier  de  Flaix,  "L'alcool  et  I'alcoolisme,"  R.  S.  (14  August,  1886). 

'  Kummer,  "Zur  Alcoholfrage,  Darstellung  der  Gesetze  und  Erfahningen" 
(Beme,  1884);   Colajanni,  "L'alcoolismo"  (Catane,  1887). 


252  DATA  OF  CRIMINAL  STATISTICS  [§  171 

Colajanni,^  it  is  sufficient  to  point  out  that  his  thesis  is  nothing 
but  a  gross  error  of  statistical  logic. 

S  171.  Physical  and  Psycho-pathogenic  Influence  of  Alcohol. 

Our  first  assertion  is  that  when  one  concedes  (and  it  cannot 
be  denied)  the  physical  and  psycho-pathogenic  influence  of 
alcohol  not  only  in  liquors,  but  also  in  wines  (a  form  in  which  it  is 
inaccurate  to  say  that  the  Southern  peoples,  and  in  Italy  the 
Southern  provinces,  are  not  addicted  to  alcohol  in  comparison 
with  northern  populations  and  provinces^  but  only  that  they  are 
less  so),  one  is  unable  to  explain  why  alcohol  itself,  physically 
and  morally  harmful  to  individuals,  should  not  have  the  same 
effect  on  populations  which  are  but  the  sum  of  the  individuals.^ 
As  for  the  argument  based  on  statistics  which  calls  attention  to 
the  fact,  for  example,  that  there  is  not  a  constant  and  exact  agree- 
ment year  by  year,  between  the  figures  for  alcohol  and  crime,  it  is 
easy  to  reply:  (a)  That  there  is  never  found  in  any  statistical 
abstract  a  constant  and  exact  agreement  of  the  figures  because 
the  interference  of  individual,  physical,  and  social  causes  is  in- 
evitable in  social  phenomena:  (b)  The  conclusions  drawn  from 
partial  disagreements  (which  are  unavoidable,  since,  especially  in 
biology  and  sociology,  every  rule  has  its  apparent  exception,  due 
to  the  action  of  intervening  causes)  woidd  be  legitimate  only  if 
it  were  maintained  that  alcoholism  is  the  sole  and  exclusive  cause 
of  crime.  As  no  one  has  ever  asserted  such  a  thing,  all  of  the 
statistical  reasonings   of  Fournier   and  Colajanni  rest  upon  an 

*  Rossi,  "L'alcoolismo  in  Europa  e  gli  errori  di  Colajanni,"  A.  P.  (1887), 
VIII,  fasc.  6. 

*  Thus,  for  example,  the  strong  proportion  of  sanguinary  crimes  in  Abruzzia 
is  explained  in  part  by  the  popular  habit  of  drinking  distilled  wines  ("vins  cuits") 
with  a  higher  percentage  of  alcohol,  in  the  same  quantities  that  the  neighboring 
provinces  drink  ordinary  wine.  In  certain  regions  of  Sicily  highly  alcoholic  wines 
are  used. 

»  According  to  the  data  gathered  by  Broch,  B.  I.  I.  S.  (Rome,  1887),  II,  p. 
S89,  the  annual  consumption  (of  which  95  per  cent,  is  in  the  form  of  drink)  would 
average  for  each  inhabitant,  in  Uters  of  pure  alcohol,  from  1881  to  1885: 

Italy 0.9  Russia 4.2 

Norway 1.7  Switzerland 4.6 

Fmland 2.2  Belgium 4.7 

Gt.  Britain  and  Ireland 2.7  Europe  (average) 3.3 

Austro-Hungary 3.5  U.  S.  (average) 2.6 

France 3.8  Holland 4.7 

Sweden 3.9  Denmark 8.9 

Germany 4.1 


§172]  EQUIVALENTS  FOR  PUNISHMENT  253 

equivocation  and  are  far  from  destroying  the  causal  connection 
between  alcoholism  (acute  or  chronic  from  spirits  or  wine)  and 
criminality  (especially  occasional  in  acute  alcoholism  with 
assaults  and  homicides  and  habitual  in  chronic  alcohohsm,  with 
crimes  against  property,  against  the  person,  criminal  assaults, 
and  resistance  to  the  police),  although  the  figures  indicating 
alcoholism  as  the  direct  and  principal  cause  of  crimes  and  suicides 
are  relatively  weak  and  certainly  below  the  reality. 

§  172.  Alcoholism  and  Drunkenness. 

Alcohohsm,  hke  vagabondage  and  crime,  has  always  existed 
in  various  forms:  but  since  1800  it  has  become  a  scourge  both 
general  and  terrible.  This  is  enough  to  demonstrate  that  it  is 
not  the  efiFect  of  the  immoral  free  will  of  individuals  but  that  it  is 
the  reaction  and  effect  of  our  civihzation.  Indeed,  industriahsm 
is  the  great  cause  of  alcohohsm,  since  it  forces  the  workmen  to  an 
exhausting  and  overwhelming  toil,  which  impels  them  to  seek  the 
passing  and  illusory  energy  afforded  by  alcohol.  On  the  other 
hand,  it  is  industrialism  itseff  that  produces  alcohol  so  cheaply, 
in  such  quantity,  and  of  such  quality  (and  it  is  more  dangerous 
when  made  of  potatoes  and  from  wood  than  when  made  from  wine) 
such  as  past  ages,  when  alcohol  was  called  the  water  of  life  be- 
cause it  was  used  simply  as  a  medicine,  have  never  known.  There 
existed  drunkenness  (from  wine,  beer,  cider)  but  not  the  alcohohsm, 
which  Magnus  Huss  of  Stockholm  was  the  first  to  describe  in 
1849-1850.  The  more  or  less  jovial,  bantering,  jaunty  drunken 
man  tends  more  and  more  to  make  room  for  the  pale,  irritable, 
brutal  drunkard.  Drunkenness  has  always  existed,  as  is  proved 
by  the  legends  of  the  apple  of  Eve,  the  soma  of  India,  the  mead 
of  Northern  Europe  (probably  cider),  which  are  symbols  of  fer- 
mented drinks.  It  is  thus  that  an  Arab  legend  speaks  of  the  vine 
"planted  by  Adam  and  watered  with  the  blood  of  the  ape,  the 
lion,  and  the  swine,"  an  evident  allusion  to  the  physio-psychic 
effects  of  dnmkenness.  It  was  also  the  great  vice  of  the  pros- 
perous classes  of  the  Middle  Ages.  But  it  practically  disappeared 
through  changes  in  social  conditions  and  the  adoption  of  coffee  and 
tea  since  humanity  has  always  shown  itself  greedy  for  stimula- 
tion, even  resorting  (hke  the  savages)  to  excessive  rythmical  dance 
movements  in  the  absence  of  fermented  drinks.  Alcohohsm  due 
to  liquors  (similar  to  the  intoxication  from  opium,  hemp,  or  mor- 
phine) is,  in  a  greater  degree  than  wine  drinking,  an  obvious 


254  DATA  OF  CRIMINAL  STATISTICS  [§  173 

cause  of  physiological,  intellectual,  and  moral  degeneracy.  Few 
men  of  genius  have  been  alcohohc  (Avicenne,  Byron,  Beethoven, 
Musset,  Poe).  The  most  atrocious  and  the  strangest  crimes 
(without  any  apparent  cause  or  motive)  are  often  but  the  effect 
of  alcoholism,  particularly  in  epileptics  and  epileptoid  persons. 
Alcoholism,  like  every  phenomenon  of  individual  and  social 
pathology,  has  anthropological,  physical  or  telluric,  and  social 
factors.  The  physiological  factor  which  resists  every  propa- 
ganda is  seated  in  the  need  for  excitement  which  is  natural  to  man 
and  which  becomes  chronic  when  the  fatigue  and  organic  exhaus- 
tion of  excessive  labor  impel  him  to  the  consumption  of  alcohol. 
For  this  reason,  alcohol  is  used  with  advantage  in  the  treatment 
of  certain  diseases  and  during  convalescence.^  The  telluric 
factor  is  in  the  climate  which  with  greater  or  lesser  cold  produces 
a  variable  organic  expenditure  and  impels  to  drink.  In  southern 
countries  water  is  drunk;  farther  north,  wine;  still  farther  north, 
alcohol;  and  near  the  pole,  oil  and  fats. 

§  173.  Penal  Substitutes.    Social  Order.    Poverty  and  Fatigue. 

The  social  factor,  on  the  one  hand,  may  be  summed  up  in  the 
two  words  —  poverty  and  fatigue;  on  the  other  hand  (among  the 
well-to-do  classes),  it  is  found  in  idleness  and  the  feverish  struggle 
for  wealth.  These  are  the  causes  which  render  the  need  and  abuse 
of  alcohol  chronic  and  epidemic  which  otherwise  would  be  in- 
termittent and  sfKjradic.  This  social  factor,  particularly  in  the 
influence  of  poverty  and  fatigue,  is  the  only  explanation  of  the  ter- 
rible progress  of  alcohohsm  since  1850.  In  some  countries,  such  as 
Sweden,  Norway,  Denmark,  the  British  Isles,  the  United  States, 
this  progress  is  falling  off  or  the  consumption  itself  recedes  (liquors 
are  less  abused  and  more  beer  is  consumed) ;  but  in  other  countries, 
especially  in  the  North  of  France  and  in  Belgium,  alcoholism  has 
taken  on  truly  frightful  proportions.  At  Rouen,  for  example,  it 
has  been  calculated  from  the  average  consumption  of  alcohol 
(excluding  children  and  two-thirds  of  the  women)  that  the  adult 
men  drink  every  day  from  a  half  to  three-quarters  of  a  liter  of 
liquor.  The  average  annual  consumption,  expressed  in  Uters,  for 
each  inhabitant  (including  women  and  children)  in  1893-94  was: 

^  It  has  been  demonstrated,  however,  that  the  influence  of  alcohol  consists  in 
a  momentary  and  transitory  excitation  of  muscular  effort  and  of  the  nervous  sys- 
tem, succeeded  by  a  paralyzing  reaction.  See  the  R.  S.  (23  April,  1898),  p.  536; 
Danilewsky,  "Les  effets  de  I'alcool  sur  I'organisme  humain,"  in  the  "Journal  de 
la  Soci6t6  nisse  d'hygiene  publique"  (June,  1898). 


§§  174,  175]  EQUIVALENTS  FOR  PUNISHMENT 


^55 


Annual  average 

per  capita 

1893-94 

British 
Isles 

Denmark 

Germany 

Belgium 

France 

Italy 

Alchohol 
Beer 
Wine 

4 

136 
1 

14 

103 

1 

9 

108 

3 

9 

182 
3 

8 
23 
79 

0.7 
0.8 
110. 

Now,  what  is  to  be  done  in  face  of  this  scourge  of  alcoholism 
which,  with  abandoned  infancy  and  vagabondage,  is  a  source  of 
chronic  criminality?  A  multitude  of  remedies  due  to  private 
initiative  and  government  action  have  been  proposed  and  applied; 
but  all  descended  artificially  from  the  top  to  the  bottom,  were 
imposed  by  law,  and  all  forgot  and  continue  to  forget  the  social 
conditions  which  alone  make  alcoholism  an  epidemic  scourge.^ 

§  174.  Repressive  Remedies. 

These  are  the  most  common,  the  easiest,  but  also  the  least 
effective  and  most  stupid.  All  countries  copying  England  (Acts 
of  1862  and  1892)  have  provided  coercive  penalties  against  drunk- 
ards, sellers  of  spirits,  and  makers  of  alcohol.  They  have  gone  so 
far  as  to  declare  the  drunkard  deprived  of  the  paternal  authority. 
The  judges  themselves  have  become  weary  of  sentencing,  as  has 
happened  in  France  with  the  Roussel  law,  because  they  see  that 
it  is  absurd  to  punish  the  effects  so  long  as  the  causes  are  not  sup- 
pressed.^ 


§  176.  Relation  of  Alcoholism  and  Crime.    Fiscal  Remedies. 

Under  the  banner  of  philanthropy  and  social  hygiene,  the  min- 
isters of  finance  in  all  countries  have  applied  themselves  to  estab- 

1  An  excellent  collection  of  data  on  penal  legislation,  other  legislative  meas- 
ures, the  work  of  private  initiative,  and  the  organization  of  asylums  for  drunk- 
ards, is  given  by  Vidal,  "Enqufite  sur  I'alcoolisme  en  Europe  et  en  Am^rique," 
"Rev.  p6nit."  (1896),  p.  1268. 

*  In  consequence  of  the  habitual  fetichism  of  penalties,  the  illusion  of  combat- 
ing alcoholism  with  penalties  is  more  or  less  common  to  all  coim tries;  and  every- 
where there  are  repressive  sanctions  against  drunkenness  in  public.  Thus:  the 
(Roussel)  law  of  23  January,  1873,  and  Articles  488  and  489  of  the  new  Italian 
Penal  Code,  —  the  law  of  10  August,  1872,  in  England,  —  the  law  of  28  June, 
1881,  in  Holland,  — of  2  March,  1885,  in  Luxembourg,  —  of  19  July,  1877,  in 
Austria,  —  two  laws  of  1855  on  the  manufacture  and  sale  of  alcohol  and  the  ordi- 
nances of  1871  and  1887,  in  Sweden,  —  the  law  of  16  August,  1887,  in  Belgium, 
—  the  penal  codes  of  Germany  (§  361,  No.  5),  of  Hungary  (contrav.  §  §  84,  85), 
of  the  Canton  of  Tessin  (Art.  427),  etc.    The  "Rapport  sur  la  justice  criminelle  en 


256  DATA  OF  CRIMINAL  STATISTICS  [§  176 

lishing  and  creating  imposts  on  the  manufacture  and  sale  of  alcohol. 
In  a  few  countries  (like  Belgium)  reductions  in  the  taxes  on  wine 
and  beer  have  recently  been  enacted  (and  this  is  useful  in  the 
substitution  of  a  lesser  for  a  greater  evil).  But  taxes  have  also 
been  reduced  on  the  so-called  industrial  alcohols  which  are  still 
sold  in  the  drinking  places  where  they  are  transformed  into  more 
or  less  drinkable,  but  doubly  toxic  Uquids.^  The  principal  effect 
of  these  imposts  is  to  make  alcoholic  drinks  more  unhealthful 
by  lowering  their  quahty,  and  hence  more  dangerous  in  poisoning 
the  pubUc,  since  the  social  conditions  impelling  the  people  to  con- 
sume Uquor  remain.  It  has  even  been  carried  to  the  extent  (in 
Switzerland  and  in  the  four  eastern  provinces  of  Russia  and 
elsewhere)  of  a  State  monopoly  of  alcohol;  but  not  even  that  is  the 
remedy  for  alcoholism.  The  statistical  decrease  observed  in 
Switzerland  is  probably  but  an  optical  illusion,  because  the 
figures  were  very  inexact  before  the  monopoly.  Since  the  mon- 
opoly, the  average  consumption  has  remained  almost  constant 
from  six  and  two-tenths  liters  in  1888  to  six  and  three-tenths 
liters  in  1894.^ 

§  176.  Relation  of  Alcoholism  and  Crime.    Remedies  of  Regxilation. 

There  are  restrictive  measures  on  the  sale  of  alcohoUc  bever- 
ages, —  measures  which  range  from  absolute  prohibition  (system 
of  the  State  of  Maine)  to  the  exploitation  of  the  traffic  by  temper- 
ance associations  (Gotheburg  system),^  which  have  employees 
at  a  fixed  salary,  and  hence  with  no  p>ersonal  interest  to  increase 
the  sale  of  Hquor,  but  with  a  profit-sharing  interest  in  the  larger 
sale  of  health  drinks,  —  coffee  and  tea.  There  are  other  police 
or  fiscal  restrictions  with  the  obligation  to  pay  a  license  for  open- 
ing a  drinking  place;  legal  limitation  of  the  number  of  inhabitants; 

France  pour  1887,"  showing  a  decrease  of  prosecutions  for  public  drunkenness 
(which  decUned  from  a  yearly  average  of  81,146  for  the  period  1873-75,  to  67,155 
for  the  period  1881-85,  and  to  59,098  for  1887),  concludes  that  the  decrease  of  pros- 
ecutions does  not  represent  a  decrease  of  dnmkenness  but  only  a  lesser  severity  on 
the  part  of  the  authorities  (Paris,  1889,  p.  xxxviii). 

1  For  France,  see  Meilhon,  "Legislation  relative  a  Talcoolisme,"  A.  M.  P. 
(April,  1895);  and  for  Italy,  Celli,  "Alcoolisrao  e  fiscalismo  in  Italia,"  in  the  "Rin- 
novamento  economicheo  amministrativo"  (July,  1895). 

*  Nevertheless,  the  monopoly  seems  to  be  the  least  evil  of  the  fiscal  remedies 
especially  when  as  (recently  proposed  in  Belgium,  after  a  similar  example  afforded 
by  Norway)  the  profits  of  the  monopoly  are  employed  by  the  terms  of  the  law  in 
the  betterment  of  the  material  and  moral  condition  of  the  lower  classes. 

'  Wiesdgren,  "Resultats  du  systeme  de  Gotheburg"  (Stockholm,  1898) . 


§§  177,  178]  EQUIVALENTS  FOR  PUNISHMENT  257 

obligation  imposed  on  hotel  and  saloon  keepers  of  paying  indem- 
nity to  the  families  of  drunkards  to  whom  hquor  has  been  sold 
when  they  were  already  drunk;  the  exclusion  from  membership 
in  labor  associations  of  persons  who  drink  to  excess.  The  imagina- 
tion can  invent  hundreds  of  measures  of  this  kind,  but  the  effect 
is  always  the  same.  Even  the  number  of  places  of  sale  has  no  ap- 
preciable influence  on  the  consumption  of  alcohol.  In  Holland, 
for  example,  there  is  a  place  of  sale  for  each  one  hundred  and 
ninety- two  inhabitants  and  in  Belgium,  one  for  every  thirty-five; 
and  yet  the  average  consumption  is  about  the  same  (nine  liters) 
in  both  countries. 

§  177.  Relation  of  Alcoholism  and  Crime.    Psychological  Remedies. 

These  have  their  utihty  since  they  tend  to  spread  total  or  par- 
tial abstinence,  through  a  propaganda  in  the  schools,  churches, 
popular  associations,  and  committees.  We  have  the  example  of 
Father  Matthew  in  Ireland,  in  1847,  —  after  which,  however,  the 
Irish  drank  ether,  arguing  that  Father  Matthew  preached  only 
against  the  use  of  gin.  There  are  also,  particularly  in  Anglo- 
Saxon  countries,  temperance  societies,  generally  composed  of 
women  who  employ  all  sorts  of  means  of  propaganda  from  lessons 
in  the  elementary  schools  to  grotesque  and  discordant  orchestras 
playing  before  the  bars  and  places  where  liquor  is  sold.  But 
these  remedies  represent  an  enormous  (though  admirable)  expendi- 
ture of  energy  and  effort  to  obtain  very  slight  and  uncertain  re- 
sults which  cannot  cope  with  the  terrible  and  incessant  influence 
of  the  social  conditions,  favorable  to  alcoholism.  It  is  always 
useful,  however,  to  make  a  propaganda  against  alcoholism,  hke 
that  carried  on  by  the  Belgian  sociahsts  where  the  "stores  of  the 
people"  do  not  sell  liquor.  For,  it  is  certain  that  if  people  are 
convinced  of  the  evils  produced  by  alcoholism,  this  conviction 
will  favor  the  very  influence  that  improved  social  conditions  can 
exert. 

§  178.  Relation  of  Alcoholism  and  Crime.    Therapeutic  Remedies. 

Aside  from  the  houses  of  forced  reclusion  for  delinquents  in  a 
state  of  habitual  drunkenness,^  there  are  free  drunkards'  asylums, 

1  There  was  in  England  the  Habitual  Drunkard's  Act  of  January,  1880  (re- 
viewed in  A.  H.  P.,  Nov.,  1882);  and  it  has  been  imitated  in  an  incomplete  way 
(as  is  our  habit)  and  without  practical  apphcation  by  Art.  48  of  the  Itahan  Penal 
Code. 


258  DATA  OF  CRIMINAL  STATISTICS  [§  179 

tried  for  the  first  time  at  Lintorf,  in  Prussia  (1891),  later  in 
America,  England,  Austria,  and  Switzeriand.^  But  these  es- 
tablishments, unless  the  efforts  of  serotherapy  against  alcohoUsm 
should  succeed,^  are  of  very  limited  efficacy,  because  they  can 
only  serve  a  few  hundred  of  individuals  of  the  more  comfortable 
classes  while  drink  is  a  scourge  that  smites  milhons  of  men.  All 
of  these  remedies  can  be  but  transitory  and  of  limited  efficacy, 
since  for  alcohoUsm  (as  for  neglected  childhood,  vagabondage, 
and,  hence,  for  crime)  there  is  only  one  remedy.  It  is  the  social 
remedy,  i.  e.  the  raising  of  the  standard  of  the  life  of  the  people 
(shorter  hours  of  labor,  better  wages,  more  attractive  family  life, 
healthy  amusements,  such  as  theaters  in  place  of  saloons  and 
drinking  places,  and  so  on).  As  to  the  well-to-do  classes,  they 
will  be  cured  of  alcoholism  when  they  shall  have  been  cured  of  the 
mania  for  wealth  which  makes  the  struggle  for  existence  feverish 
and  sad  and  which  always  urges  to  the  mania  for  theft  under  every 
form  of  fraud.  It  is  only  through  a  new  orientation  of  society 
and,  hence,  of  pohtical  and  moral  conditions,  that  we  shall  see 
the  disappearance  of  alcoholism,  that  terrible  source  of  crime, 
against  which  dm-ing  the  period  of  transition  it  is  none  the  less 
necessary  to  bring  to  bear  the  organized  mass  of  the  less  illusory 
of  the  remedies  which  we  have  mentioned. 

§  179.  Penal  Substitutes.    Economic  Orders  in  General. 

Let  us  continue  the  enumeration  of  the  equivalents  for  penalties. 
The  substitution  of  a  metallic  coinage  for  paper  money  singularly 
reduces  coimterfeiting,  which  has  resisted  the  maximum  sentences 
to  hard  labor.  It  is  easier  for  most  people  to  detect  a  false  coin 
than  a  counterfeit  bill,'  The  commerce  in  money  and  precious 
metals  has  had  a  greater  influence  than  penalties,  on  the  increase 

In  Switzerland,  the  penal  codes  of  Beme  (Art.  47),  of  Neuch&tel  (Art.  204), 
and  a  law  of  St.  Gall  (May,  1891),  and  Art  28  of  the  draft  of  the  Swiss  Penal  Code 
regulate  these  asylums  for  drunkards.  Drafts  of  laws  have  been  submitted  in 
Germany  (1894),  and  in  Norway  (1896). 

^  Ladame,  "De  I'assistance  et  de  la  legislation  relative  aux  alcooliques."  Re- 
port to  the  "Congres  des  m6decins  alienistes,"  at  Clermont-Ferrand,  1894. 

»  Id.,  the  "Revue  des  Revues,"  15  Dec.,  1898,  p.  647,  and  1  Jan.,  1899, 
p.  103. 

*  Crimes  against  the  currency  are  less  in  the  total  of  convictions  for  crime  in 
France  and  Belgium  than  in  Italy  where  the  use  of  paper  money  is  more  general. 
Special  statistics  for  criminal  prosecutions  in  Italy  for  uttering  and  circulating  false 
bank  bills  from  1866  to  1878  are  found  in  the  "Annales  de  statistique"  (1880), 
Vol.  15,  pp.  311  rf  seq. 


§179]  EQUIVALENTS  FOR  PUNISHMENT  259 

and  decrease  of  usury.  Spain  experienced  this  after  her  American 
conquests/  and  it  is  proven  also  by  the  history  of  penalties  in 
the  Middle  Ages,  which  did  not  prevent  the  continual  reappearance 
of  usury  under  the  forms  of  various  devices  such  as  "anacorisme," 
the  "contrat  mohatra"  and  the  tri-lateral  contract.  In  our 
own  times,  institutions  of  popular  and  agricultural  credit,  and 
rural  banks  and  similar  economic  (but  not  penal)  measures 
would  be  much  more  effective  against  usury  than  the  exceptional 
laws  of  repression  enacted  a  few  years  ago  in  Germany,  Austria, 
and  Hungary.'^  Again,  if  the  ratio  of  interest  of  pubUc  secu- 
rities were  lowered  the  current  of  capital  would  flow  into  com- 
merce and  industry  and  thus  would  be  prevented  the  crimes  of 
bankruptcy,  fraud,  forgery,  which  are,  at  least  in  part,  the  conse- 
quence of  an  insufficient  flow  of  capital.  In  like  manner,  against 
the  crimes  of  the  banks  and  panamism,^  economic  measures 
dealing  with  speculation,  the  stock  exchanges,  and  the  regulation 
of  the  banks,  etc.,  would  be  more  efficacious  than  the  Penal 
Code  which  is  always  inadequate  against  "malefactors  of  great 
wealth."  *  Salaries  proportionate  to  the  needs  of  public  function- 
aries and  to  the  general  economic  conditions  will  cope  with  spec- 
ulations and  corruption  generally  due  directly  or  indirectly  to 
money  difficulties.  Limited  hours  of  service  in  the  departments, 
on  which  pubHc  safety  depends,  will  prevent  more  disasters  than 
prisons  with  which  those  guilty  of  involuntary  homicides  are 
threatened.  An  example  is  the  collision  between  trains  which  hapH 
pened  near  Milan  in  September,  1881,  by  reason  of  an  overworked 
railway  employee  who  had  faUen  asleep;  a  prison  sentence  (I  am 
unable  to  say  whether  more  unjust  than  it  was  useless)  did  not 
prevent  it.  The  development  of  good  roads,  metaUed  highways, 
economic  railways,  tramways,  and  the  concentration  of  inhabited 
centers,  cause  the  diappearance,  as  Despine  and  Lombroso  re- 
mark, of  the  association  of  malefactors  and  bands  of  criminals, 
at  the  same  time  making  acts  of  brigandage  and  armed  robbery 
rare.  5    The  distribution   of  wood  during  the  severe  winters  in 

^  Montesquieu,  "L'Esprit  des  lois,"  Lib.  XXII,  Chap.  VI. 

"  Vidari,  "Di  alcune  nuove  leggi  contro  I'usura,"  in  the  "Annuario  delle  scienze 
giuridiche"  (Milan,  1881);  Morpurgo,  "La  criminalita  nei  contadini  del  Veneto," 
in  the  "Atti  della  giunto  per  I'lnchiesta  Agraria"  (Rome,  1882),  IV,  fasc.  I. 

'  The  author  probably  means  stock-jobbing  of  the  French  Panama  order. 

*  Lascki,  "La  delinquenza  bancaria"  (Turin,  1899). 

'  In  Sicily,  for  example,  brigandage  thrives  not  only  from  favorable  ethnic 
and  social  conditions  but  by  reason  of  very  poor  roads. 


260  DATA  OF  CRIMINAL  STATISTICS  [§  179 

the  poor  villages  was  tried  by  Cardone,  the  King's  procurator  at 
Bergane,  and  he  thus  opposed  rural  robberies  vnih  a  much  more 
efficient  obstacle  than  that  of  gendarmes  and  jails.  So,  also,  the 
construction  of  houses  and  wide  streets,  the  extension  of  street 
illumination,  the  suppression  of  ghettos  and  other  sordid  quarters, 
the  establishment  of  night  refuges,^  are  better  for  the  prevention 
of  burglaries,  robberies,  assaults,  and  the  receiving  of  stolen  goods, 
than  all  the  agents  of  pubUc  safety.  We  read,  for  example,  in 
the  diary  of  Roncalli,^  that  in  1852  "by  order  of  the  pontifical 
government  four  great  lights  were  placed  in  St.  Peter's  Square, 
and  this  measure  was  taken  to  prevent  villainies.  It  was  no- 
torious that  many  persons  went  to  the  Square  of  St.  Peter  on  dark 
nights  to  commit  acts  contrary  to  good  morals."  Many  rob- 
beries and  other  crimes  would  be  prevented  if  all  of  the  houses 
were  so  constructed  that  in  order  to  reach  the  apartments  one  must 
pass  the  lodging  of  the  concierge.  In  many  cities  the  use  of  a  safety 
chain  on  the  doors  of  apartments  is  an  effective  obstacle  to  burgla- 
ries and  robberies.  The  use  of  the  Roentgen  Rays  in  the  examina- 
tion of  baggage,  already  tried  in  France,  prevents  the  myriad  of 
frauds  on  the  revenue  and  local  imposts  which  even  "honest 
people"  often  commit,  and  sometimes  as  a  protest  against  vexa- 
tious laws.  Cheap  worldngmen's  houses,  and  in  general,  sanitary 
police  regulations  seriously  applied  to  both  city  and  country 
dwellings,  by  preventing  the  excessive  huddling  together  of  poor 
families,  would  improve  their  physical  hygiene,  and  at  the 
same  time  avoid  a  mass  of  inmioral  and  guilty  acts.'    Coopera- 

*  For  instance,  Rowton  House,  in  London,  (see  the  "Scuola  positiva,"  July, 
1898),  which  it  has  been  attempted  to  imitate,  on  a  worthy  initiative,  in  the  crea- 
tion of  an  "albergo  popolare"  in  Milan. 

»  Roncalli,  "Cronaca  di  Roma  dal  1849  al  1870." 

•  Brouardel,  in  his  commentaries  on  Hofmann's  "Nouveaux  ^l^ments  de  mede- 
cine  legale"  (Paris,  1881),  pp.  726  and  721  writes:  "Very  often,  it  is  on  their  s<mis 
and  daughters  that  the  accused  have  committed  criminal  assaults. "  Tardieu,  in 
"Attentats  aux  moeurs,"  speaks  of  incests  between  brothers  and  sisters  provoked 
by  the  same  cause.  And  to  the  same  effect  is  Annechino,  "Incestuosi  d'occasione," 
in  the  "Anomalo,"  Sept.,  1898.  Du  MesnU,  "  L'habitation  du  pauvre  a  Paris," 
in  the  "Annales  d'Hygiene  publique"  (Jan.,  1883),  records  that  in  five  arron- 
dissements  of  Paris,  while  the  number  of  popular  lodging-houses  increased  from 
2,621  in  1876  to  3,465  in  1882  (32  per  cent.),  the  number  of  persons  in  these  tene- 
ments rose  from  42,821  to  82,380  (95  per  cent.).  Bex,  "Logements  ouvriers  en 
Allemagne"  {id.,  Aug.,  1882),  says  that  six  and  even  eight  lodgers  crowd  into  a 
small  room  with  the  proprietors  and  "it  is  said  that  in  Rhenish  Prussia  the  lessor 
not  only  permits  the  adulterous  relations  of  his  wife  with  the  lodgers  but  stipulates 
in  the  contract,  in  a  more  or  less  disguised  way,  for  a  special  compensation."  See, 
also,  the  investigation  of  worldngmen's  habitations  by  Freete,  "Wohnungsnot  und 


§  180]  EQUIVALENTS  FOR  PUNISHMENT  261 

tive  and  Mutual  Assistance  Societies,  Provident  and  Old  Age 
Funds,  Funds  for  disabled  workmen,  Civil  Liability  of  employers 
and  masters,  better  and  more  promptly  applied  in  industrial 
accidents,  commercial  and  savings  banks  for  the  people.  Com- 
mittees on  Employment,  giving  assistance  in  the  form  of  labor, 
—  would  also,  better  than  the  penal  code,  prevent  a  multi- 
tude of  occasional  crimes  against  property  and  the  person.  In 
this  connection  I  have  stated  in  Parliament  that  the  reform  of 
the  Pious  Works  should  place  in  the  hands  of  the  government 
and  of  its  administrators  an  immense  force  with  a  capital  of  two 
milliards,  in  the  prevention  of  a  great  number  of  crimes  if  good 
use  were  made  of  it.  Also  all  of  the  measures  suited  for  the 
prevention  of  begging  and  vagabondage  are  but  equivalents  for 
penalties  in  the  crimes  which  in  general  are  not  serious  but  are 
very  frequently  committed  by  vagabonds  and  beggars.  These 
measures  should  use  jails  as  Kttle  as  possible  and  should  exist 
in  agricultural  colonies,  as  in  Holland,  Belgium,  Germany,  and 
Austria. 

§  180.  Vagabondage  and  Crime. 

Together  with  alcoholism  and  neglected  childhood,  vaga- 
bondage, generally  accompanied  to  some  extent  by  begging,  is  an 
abundant  source  of  crime,  constituting,  as  it  does,  an  intermediate 
zone  between  the  unemployed  and  the  criminal.  The  essential 
characteristic  of  vagabondage  is  not  idleness.  Its  specific  char- 
acteristic is  rather  lack  of  domicile  (which,  however,  tends  to  disap- 
pear as  an  attribute  of  vagabondage)  and  the  lack  of  the  means! 
of  existence  which  is  its  predominant  note.  There  are  idlers  both 
with  and  without  fixed  domiciles  who  are  not  legally  speaking, 
vagabonds,  since  they  do  have  means  or  fortunes  even,  and  yet 
who  live  without  working.  Like  every  other  phenomenon  of 
social  pathology,  vagabondage  has  its  anthropological  factors 
(a  kind  of  biological  debility,  of  neurasthenia  or  psychasthenia, 
which  cause  an  invincible  repugnance  to  all  methodical  work  and 
which  may  even  become  pathological  forms  of  ambulatory  autom- 

Asatzkrisis,"  in  the  "  Jahrbuch  fiir  Nationaloek.  iind  Statistik,"  1893,  p.  661;  and 
Booth,  "In  Darkest  England"  (London,  1894).  This  situation  which  recalls  the 
sexual  promiscuousness  of  certain  savage  tribes  noted  by  Letourneau  in  "La  socio- 
logie  d'apres  I'ethnographie"  (Paris,  1880),  pp.  53-58,  is  the  infamous  mark  of 
our  civilization  in  the  poor  quarters  of  the  richest  cities,  even  in  our  country,  for 
which  it  is  only  necessary  to  mention  the  "bassi"  and  the  "fondaci"  of  Naples, 
described  by  Villari,  Mario  and  many  others,  which  under  other  names,  but  with 
little  fundamental  difference,  are  found  in  all  the  large  cities. 


262  DATA  OF  CRIMINAL  STATISTICS  [§  180 

atism) ;  ^  its  physical  factors  (principally  the  climate,  which, 
if  mild,  makes  life  alimentative  and  sleep  easier);  and  its  social 
factors  (working  conditions  more  or  less  assured  to  every  healthy 
adult  man).  In  order  to  understand  the  relation  between  vaga- 
bondage and  crime  and  to  indicate  the  remedies,  one  should  re- 
trace its  evolution  guided  by  the  excellent  study  made  by  Florian 
and  Cavaglieri.^  While  crime  is  the  indirect  reflection  of  social 
and  economic  conditions,  vagabondage  is  their  immediate  reflec- 
tion. Vagabondage  was  a  perfectly  normal  fact  in  its  primitive 
phase  during  the  thousands  of  centuries  when  nomadic  humanity 
lived  from  the  chase,  fishing,  and  grazing.  When,  however,  primi- 
tive humanity  passed  into  the  agricultural  stage  (with  the  economic 
and  social  institution  of  slavery)  the  attachment  of  man  to  the 
soil  becomes  a  social  institution  which  involves  the  prohibition  of 
emigration,  and  vagabondage  then  becomes  anti-social.  Fugitive 
slaves  were  really  the  first  vagabonds,  pursued  and  punished 
as  delinquents.  They  became  more  and  more  numerous  until 
the  decline  of  slavery  changed  neariy  all  of  them  into  an  over- 
flowing horde  of  vagabonds,  to  which  the  monasteries  and  the 
juridical  institution  of  serfdom'  opposed  but  an  inadequate  re- 
sistance. In  the  first  half  of  the  Middle  Ages,  during  the 
communal  period,  the  communes  became  more  and  more  the 
refuges  for  serfs  who  had  escaped.  Thus  infant  industry  sub- 
stituted the  urban  servitude  of  the  shop  for  the  rural  servitude  of 
the  soil.  In  the  second  half  of  the  Middle  Ages,  the  spread  of 
commerce,  the  frequent  wars  (which  transformed  soldiers  of  for- 
tune into  vagabonds  and  brigands),  and  even  the  mendicant 
orders  (founded  by  Francis  d'Assisi),  gave  a  new  extension  to  the 
phenomenon  of  vagabondage,  which  reached  its  crest  during  the 
two  hundred  years  between  1500  and  1700.  During  this  period, 
which  precedes  the  formation  of  great  industrialism,  the  pro- 
gressive concentration  of  landed  property  took  place,  and  the 
peasants  were  driven  from  their  land,  which  was  turned  into 
pastures  and  parks.  "Sheep  have  eaten  the  men,"  was  heard  in 
England,  whose  laws  against  vagabondage  were  cruel  to  the  last 

^  Ptires,  "L'automatisme  ambulatoire,"  in  the  "Revue  des  Revues"  (1  May. 
1896);  Astor,  "Le  vagabondage  pathologique,"  in  the  "Rev.  penit."  (1896), 
p.  547;  Drewarte,  "De  Torigine  epileptique  de  l'automatisme,"  in  the  "Progres  me- 
dical" (1895).  46,  and  A.  M.  P.  (November,  1898),  p.  465. 

*  Florian  and  Cavaglieri,  "I  vagabondi,"  in  the  S.  P.  (May,  1894),  and  Vol.  I 
(Turin,  1897);    Vol.  II  (Turin,  1900). 

*  "Servitude  de  la  gl^be." 


§180]  EQUIVALENTS  FOR  PUNISHMENT  26S 

degree.  And  yet  vagabonds  were  only  peasants  without  employ- 
ment, because  of  the  change  in  rural  development  through  the 
spread  of  great  pastures  and  of  landlordism,  which  also  was  es- 
tablished by  usurping  the  communal  lands  for  private  profit, 
after  dispossessing  the  proletariat.  In  this  period  modern  in- 
dustrialism began  with  the  necessary  accompaniment  of  two 
social  phenomena:  the  mobility  of  the  workman  (who  could  leave 
one  shop  for  another,  or  go  from  one  province  to  another)  and 
the  army  of  unemployed  necessary  for  the  maintenance  of  wages 
at  a  level  advantageous  to  the  capitalists.  Then,  since  1500,  we 
see  the  national  and  international  immigrations  and  emigrations 
of  workmen  and  peasants  becoming  more  and  more  frequent  and 
considerable.  In  turn,  the  unemployed  became  numerous,  follow- 
ing in  this  the  progress  of  machinery,  and  they  are  the  victims  of 
over-production  and  under-consumption.  There  was  a  sad  and 
living  sign  of  this  state  of  social  pathology  when  Coxey's  Army, 
one  hundred  thousand  strong,  marched  on  Washington  from  all 
parts  of  North  America.  Lawmakers  have  adopted  preventive 
and  repressive  measures,  always  penal,  against  vagabondage. 
The  Belgian  law  of  1891  (modified  by  the  law  of  December,  1896) 
is  a  very  remarkable  example  with  its  classification  of  vagabonds 
as  vicious  and  chronic  (interned  in  the  almshouses),  occasional 
vagabonds  (interned  in  the  houses  of  refuge),  and  juvenile  vaga- 
bonds (interned  in  charitable  settlements).^  The  purpose  of 
this  law  was  the  substitution  of  surveillance  for  punishment; 
but  the  law  actually  answered  this  purpose  very  incompletely, 
since  vagabondage  is  beyond  law  of  repression  and  preventive 
police.  It  tends  to  become  normal  again,  as  it  was  in  primitive 
humanity,  thus  giving  a  new  instance  of  the  law  of  apparent  re- 
gression.^ The  journeys  of  the  rich,  of  merchants  and  working- 
men,  increase  with  the  development  of  industry.  In  England,  for 
example,  there  is  a  yearly  average  of  seven  hundred  and  seventy- 
five  million  travellers,  while  in  Russia,  with  four  times  the  popu- 
lation, it  is  only  thirty-eight  million.  It  is  impossible,  therefore, 
for  penal  laws  to  suppress  or  even  diminish  the  phenomenon  of 
vagabondage,  which,  by  again  becoming  normal,  tends  to  sepa- 
rate from  atavistic  or  ordinary  criminality  and  more  and  more  ta 
approach  evolutionary  or  politico-social  crime.  Some  countries 
have  substituted  in  place  of  penal  and  police  regulations  economic 

'  Le  Jeune,  "I  vagabondi  nel  Belgio,"  S.  P.  (1894),  p.  351. 

*  See  Ferri,  "Socialismo  e  scienza  positiva,"  2d  ed.,  and  P.  Ill,  jxut. 


264  DATA  OF  CRIMINAL  STATISTICS  [§§  181, 182 

measures  such  as  labor  settlements  for  the  unemployed,  houses 
of  refuge,  and  relief-stations  for  neglected  childhood  and 
travelling  workmen,  as  in  Germany.^  Furthermore,  the  only 
radical  remedy  for  vagabondage,  as  for  alcoholism,  must  be 
a  new  economic  organization,  which,  by  suppressing  the  causes 
of  unemployment  and  vagabondage  (except  the  isolated  and  rare 
cases  of  pathological  vagabondage),  will  be  able  to  suppress  its 
more  or  less  demoralizing  and  crime-breeding  effects.  When  the 
socialization  of  labor  (with  the  socialization  of  the  means  of  pro- 
duction) gives  every  man  not  only  the  right  but  the  duty  of  labor, 
vagabondage,  in  its  present  epidemic  form,  will  be  no  longer 
possible. 

§  181.  Penal  Substitutes.    Economic  Order.    Conclusion. 

As  to  the  economic  order,  it  may  be  said  that  a  sagacious  social 
legislation,  not  restricted  to  innovations  of  form  rather  than  sub- 
stance, and  seriously  appUed,  would  constitute  (and  England  to-day 
gives  evidence  of  it)  a  real  code  of  equivalents  for  penalties,  which 
could  advantageously  cope  with  the  totality  of  criminal  impul- 
sions that  determine  the  abnormal  economic  conditions  of  the 
most  numerous  classes. 

§  182.  Penal  Substitutes.    Political  Order. 

In  the  prevention  of  poUtical  attempts,  regicides,  revolts,  con- 
spiracies, and  civil  wars,  where  penal  repression  and  empirical 
police  prevention  are  powerless,  everything  is  possible  to  a  na- 
tional government  with  regard  for  public  Uberties.^  To  prevent 
the  so-called  crimes  of  the  press,  which  under  other  names  resisted 
the  stake  of  the  Middle  Ages,  penalties,  which  only  added  fuel 

^  "Le  stazioni  di  soccorso  per  operaji  in  Prussia,"  in  the  "Rivista  di  benifi- 
cenza  pubblica"  (February,  1896);  De  Palligny,  "Gli  asili  nottumi  a  Parigi  e  I'as- 
sistenza  per  mezzo  del  lavoro,"  id.  (February,  1898);  Ruspoli,  "Les  'Row-ton 
houses'  a  Londra,"  S.  P.  (July,  1898);  Oubert,  "Des  moyens  de  prevenir  et  de 
reprimer  le  vagabondage  et  la  mendicite,"  a  study  in  comparative  legislation 
(Dijon,  1898);  Robin  et  Drion,  "Rapport  sur  les  mesures,  soit  d'assistance,  soit  de 
repression,  a  I'egard  des  mendiants  et  des  vagabonds,"  B.  U.  I.  D.  P.  (1894),  IV, 
pp.  342  and  347.  The  subject  was  discussed  at  the  session  of  the  International 
Union  for  Penal  Law,  at  Paris  (1893),  but  no  conclusions  were  reached.  See  the 
discussion  in  the  B.  U.  I.  D.  P.  (1894),  IV.  pp.  376  et.  seq.;  Crisenoy,  "Rapport 
sur  la  suppression  du  vagabondage,"  in  the  "Rev.  penit."  (January  and  April, 
1898);  L.  Riviere,  "Le  vagabondage  et  la  police  des  campagnes,"  id.,  1898, 
p.  498. 

*  Ferri,  "Contro  Tutopia  reazionaria,"  a  parliamentary  speech  in  "Una  cam- 
pagna  ostruzionista"  (Milan,  1900). 


§182]  EQUIVALENTS  FOR  PUNISHMENT  265 

to  the  fire  and  which  are  odious  when  inflicted  on  honorable 
men,  can  advantageously  be  replaced  by  full  Uberty  of  opinion, 
permitting  society  to  expand  less  violently,  and  giving  it  a  less 
unstable  equihbrium.  This  was  recently  proven  in  France  dur- 
ing the  grave  political  and  anti-militarist  agitation  caused  by  the 
Dreyfus  case.  Respect  for  law  spreads  among  the  people  less 
because  of  police  and  jails  than  because  of  the  example  given  by 
persons  in  high  places  and  by  the  authorities  themselves,  when  they 
are  the  first  to  put  into  practice  respect  for  individual  and  social 
rights  and  strict  appUcation  of  the  law  to  any  one  who  violates  it, 
thus  avoiding  the  scandals  of  impunity  for  the  big  thieves  and  the 
most  iniquitous  severity  for  the  little  ones.^  Of  what  use  would  a 
penal  code  be  against  election  frauds  and  other  crimes?  The  sole 
remedy  is  a  good  electoral  reform  which,  by  being  in  harmony  with 
the  needs  and  tendencies  of  the  country  will  prevent,  instead  of 
inciting,  material  and  moral  disorders.  In  the  prevention  of  po- 
litical crimes  in  general  (beyond  the  economic  measures  already 
indicated  which  are  appropriate  to  make  less  miserable  the  life  of 
the  most  numerous  social  classes)  and  better  than  the  Penal  Code 
would  be  pohtical  and  parliamentary  reforms,  which  by  making 
the  legal  representation  really  more  representative  of  the  coun- 
try, would  take  from  the  assemblies  the  occasions  and  forms 
which  favor  abuses  or  destroy  their  power.  They  would  remove 
the  injurious  influence  of  political  preoccupations  on  technical 
questions  and,  further,  would  give  to  the  whole  people  a  more 
direct  participation  and  authority  in  pubhc  affairs,  for  instance, 
through  the  referendum  or  similar  means,^  Finally,  epidemic 
crime,  such  as  the  Camorra  and  the  MaflSa,^  which  proceeds  from 
the  fact  that  the  needs  and  the  particular  characters  of  different 
parts  of  a  country  are  not  satisfied  and  understood  where  there  is 
variation  of  climate,  race,  traditions,  language,  customs,  and 
interests,  would  disappear  for  the  greater  part,  if  the  metaphysical 
mania  for  political  symmetry,  centralization,  and  despotism  were 
renounced.  National  unity  has  nothing  to  do  with  legislative  and 
administrative  uniformity,  which  is  only  its  pathological  exag- 
geration.    It  is  natural  that  laws  which  actually  represent  only 

1  Laschi,  "La  delinquenza  bancaria." 

*  Lombroso  and  Laschi,  "Delitto  politico,"  pp.  467  et  seq.,  have  proposed  a  real 
code  of  equivalents  for  penalties  in  the  economic  and  political  prophylaxis  of 
political  crime. 

3  Allongi,  "La  Maffia"  (Turin,  1887);  "La  Camorra"  (Turin,  1890),  Cap. 
VII. 


266  DATA  OF  CRIMINAL  STATISTICS  [§  183 

a  means  of  compromise  between  moral,  political,  and  economic 
necessities,  quite  different  in  diflFerent  regions,  should  almost 
always  be  ill  adapted  to  social  needs,  too  narrow  and  backward 
for  one  part  of  the  country  and  too  broad  and  premature  for 
another,  like  the  clothing  issued  to  conscripts  which  is  too  small 
for  the  big  men  and  too  large  for  the  Uttle  ones.  Administrative 
federalism  together  with  political  imity  ("e  pluribus  unum") 
would  effectuate  a  real  code  of  equivalents  for  penalties,  as  Eng- 
land again  has  demonstrated  with  its  lively  local  autonomies.^ 
It  would  restore  to  each  part  of  the  social  organism  the  relative 
liberty  and  independence  of  movement  which  is  a  universal  law  of 
biology  and  sociology  (since  every  Uving  organism  is  but  a  federa- 
tion of  divers  elements)  and  which  is  stifled  and  atrophied  by  the 
leaden  cloak  of  a  uniformity  that  in  Italy  has  been  the  inevitable 
reaction  of  her  recently  reconquered  unity,  and  threatens  in  time 
to  become  more  unbearable  and  more  fatal  to  the  very  national 
unity  which  it  is  thought  to  strengthen  by  such  means.'' 

§  183.  Penal  Substitutes.    Scientific  Order. 

If  civilization  has  introduced  new  instruments  of  crime,  fire- 
arms, the  press,  photography,  new  poisons,  dynamite,  electricity, 
hypnotism,  and  microbe  infection,  science  itself,  sooner  or  later, 
introduces  new  antidotes  much  more  effective  than  penal  repres- 

*  Bertolini,  "H  govemo  locale  inglese  e  le  sue  relazioni  colla  vita  nazionale" 
(Turin,  1899),  Vol.  II. 

*  Apropos  of  the  uniformity  of  p)enal  laws  which  was  one  of  the  strongest  polit- 
ical motives  for  the  approval  of  the  new  Penal  Code,  and  which  was  a  symbol  of 
national  unity,  could  not  and  should  not  have  been  avoided  since  it  is  only  the 
exaggeration  of  the  unity  which  can  bring  about  a  reaction  in  the  federalist  sense 
as  shown  in  France  and  Italy  to-day.  Carrara,  "Lineamenti  di  pratica  legislativa 
penale"  (Turin,  1874),  p.  393,  maintained  that  it  is  unjust  and  useless  to  submit 
different  provinces  to  the  identical  penal  law;  in  this  he  was  guided  by  his  concern 
lest  the  death  penalty  be  restored  in  Tuscany,  as  had  been  proposed  at  a  certain 
time. 

On  the  contrary,  the  positive  school  from  general  reasons  of  sociology  concurs 
in  condemning  legislative  uniformity.  Thus,  Garofalo,  "  Criminalogia, "  p.  201, 
agrees  with  the  observations  which  I  have  just  made  and  which  were  later  devel- 
oped by  Lombrosi  and  Rossi,  "Sul  regionalismo  in  Italia,"  in  the  "Appunti  al 
nuovo  codice  italiano"  (Turin,  1889),  2d  ed.,  pp.  62  and  85.  To  the  same  effect, 
Lombroso  and  Laschi,  "H  deUtto  poUtico";  Niceforo,  "L'ltalia  barbara  contem- 
poranea." 

In  France  the  same  order  of  ideas  is  sustained  by  Donnat,  "Politique  exp6ri- 
mentale"  (Paris,  1885);  Bordier,  "La  vie  des  soci^tes"  (Paris,  1887),  I,  Chap. 
XVIII;  Desmoulins,  "A  quoi  tient  la  superiorite  des  Anglo-Saxons,"  (Paris,  1897); 
De  la  Grasserie,  "L'fitat  federatif"  (Paris,  1897).  For  Spain,  see  Pi  y  Margall, 
"Les  nationalites"  (Paris,  1879). 


§184]  EQUIVALENTS  FOR  PUNISHMENT  267 

sion.  The  press,  photography,  anthropological  measurements  of 
prisoners,  graphology.  Roentgen  rays,  telegraphs,  and  railroads 
give  jjowerful  aid  to  honest  citizens.  Necroscopists  and  toxi- 
cologists  prevent  poisonings.  It  has  been  already  shown  that 
the  invention  and  general  use  of  the  Marsh  apparatus  has  ren- 
dered less  frequent  the  formerly  numerous  poisonings  with 
arsenic,  by  facilitating  the  proof,  ^  A  kind  of  Marsh  apparatus  is 
now  suggested  for  written  forgeries,  whereby  the  suspected  docu- 
ments are  subjected  to  the  fumes  of  iodine,  a  process  which 
reveals  the  erased  and  newly -written  characters.^  The  practice 
of  medicine  by  women  will  suppress  many  of  the  occasions  of 
crimes  against  morals  and  the  family.  The  free  discussion  of  any 
idea,  by  obscuring  the  halo  of  certain  seductive  theories  will 
prevent  their  inconveniences  better  than  more  or  less  scandalous 
processes.  Piracy,  which  resisted  all  the  penalties  of  the  Midde 
Ages,  disappeared  with  the  use  of  steam  in  navigation.  The  use 
of  personal  letters  of  credit  by  making  useless  the  frequent  trans- 
portation of  currency  is  better  adapted,  than  are  penalties,  to 
the  prevention  of  thefts  with  or  without  violence.  To  prevent 
forged  signatures  on  letters  of  credit,  it  is  proposed  that  there 
be  a  certificate  of  authentication,  given  by  an  employee  of  the 
bank  or  commercial  house,  who  shall  state  that  he  has  seen  the 
real  debtor  sign  it.^  In  some  banks,  automatic  instantaneous 
photography  is  used  to  record  the  features  of  persons  who  come 
to  the  windows  to  bank  considerable  sums.  We  might  further 
mention  the  mechanisms  against  thieves,  such  as  safes,  safety 
locks,  and  alarm  systems.  It  has  been  recognized  that  in  pre- 
venting railway  murders,  alarm  signals  and  the  different  systems 
of  inside  locking  placed  in  the  cars  for  the  use  of  passengers,  are 
worth  more  than  the  galleys. 

§  184.  Penal  Substitutes.    Civil  and  Administrative  Order. 

A  sagacious  testamentary  legislation  is  better  than  a  penal 
code  in  preventing  murders  caused  by  the  desire  to  inherit.  Con- 
sider, for  example,  the  testamentary  powers  in  France  since  1800. 
Suitable   provisions   with   respect   to   the   capacity   of  paternal 

^  Carrara,  "Programme,"  §  1184,  note  1,  calls  attention  to  the  fact  that  poi- 
sonings have  become  rarer  rather  on  account  of  the  progress  of  chemistry  which 
reduces  the  chances  of  impunity,  than  on  account  of  the  severity  of  the  penalties. 

*  Bruylants,  "Alterations  frauduleuses  des  Ventures,"  R.  S.  (17  January,  1891). 

*  "Credito  e  cooperazione"  (Rome,  1  November,  1890). 


268  DATA  OF  CRIMINAL  STATISTICS  [§  184 

consent  to  the  marriage  of  children,  to  which  Herschell  ^  drew 
attention,  in  connection  with  the  countries  where  the  consent  of 
both  father  and  mother  is  necessary,  and  the  necessity  of  carry- 
ing out  promises  of  marriage  and  of  supporting  the  children 
bom  of  a  seduced  and  abandoned  mother,  are  excellent  antidotes 
against  concubinage,  infanticide,  abortions,  criminal  assaults,  and 
homicides  caused  by  the  undeserved  abandonment  of  women.^ 
Bentham  said  in  this  connection  that  a  legally  tolerated  and 
regulated  concubinage  would  be  less  harmful  than  that  which 
the  laws  do  not  recognize  and  are  unable  to  prevent.'  The  facility 
of  civil  justice  and  its  quasi-inexpensiveness  and,  hence,  a  greater 
development,  under  prudent  safeguards,  of  the  institution  of 
justice  of  the  peace,  would  prevent  attempts  against  public  order, 
against  the  person,  and  against  property.  In  Italy,  a  reform  with 
a  recoil  was  introduced  when  a  great  number  of  the  prefectures 
were  aboUshed,  which  in  the  distant  centers  were  the  only  sign 
of  civil  life,  and  by  aiding  the  administration  of  justice  prevented 
retahation,  the  arbitrary  exercise  of  personal  rights,  and  affrays. 
So,  also,  an  advocate  for  the  poor  replacing  the  derisive  services 
of  our  unpaid  perfunctory  attorneys,  would  make  the  defense 
of  invaded  rights  and  interests  effective,  easy,  and  prompt,  and 
in  constituting  a  sort  of  judicial  tribunal  with  authority  equal  to 
that  of  a  PubUc  Ministry,  but  with  a  popular  character,  would 

^  Herschell,  "Th^orie  des  probability,"  in  the  second  edition  of  Quetelet, 
"Physique  sociale." 

*  Tissot,  "Introduction  k  I'etude  du  droit  j>enal";  Giuriati,  "Le  leggi  dell* 
amore"  (Turin,  1881);  Rivet,  "La  recherche  de  la  patemite"  (Paris,  1890),  rightly 
insisted  on  this  reform,  if  only  for  its  preventive  effects  against  the  revenge  of 
girl-mothers,  although  he  relies  too  much  on  sentimental  arguments  as  Sighele 
says  in  the  "Archivio  di  psichiatria"  (1890),  XI,  570.  Dumas,  in  the  preface  to 
Rivet,  disabusing  himself  of  his  famous  little  work  on  the  subject,  has  placed  in 
doubt  the  utility  of  this  measure,  which  according  to  some  would  increase  illegi- 
timate births  (see  MasS  Dari,  "Ricerca  della  patemitii,  e  noscite  illegittime," 
"  Archivio  psichiatro,"  XI,  56) ;  but  aside  from  reasons  of  social  justice  which  re- 
quire that  every  one  shall  be  responsible  for  his  acts,  it  is  certain  that  proof  of  pater- 
nity, under  safeguards  to  prevent  its  abuse,  would  prevent  murders,  infanticides, 
and  abandonment  of  infants,  which  are  really  a  greater  evil  than  the  possible  ille- 
gitimate births.  Proof  of  paternity  is  in  all  cases  forbidden  by  the  codes  of  France, 
Belgium,  and  Holland,  and  of  the  cantons  of  Geneva,  Tessin,  and  Neuch&tel.  It 
is  permitted  in  all  cases  by  the  codes  and  laws  of  Austria-Hungary,  Sweden,  Portu- 
gal, England,  the  United  States,  Baden,  Bavaria,  Prussia,  Saxony,  and  a  large 
number  of  Swiss  cantons.  It  is  permitted  in  Spain,  except  in  the  case  of  adultery 
and  incest.  It  is  forbidden,  except  in  the  case  of  abduction  or  rape,  in  Italy,  Bo- 
livia, and  Serbia.    Russian  legislation  does  not  treat  of  it. 

*  Bentham,  "Treatise  on  Legislation,"  Part  IV,  Chap.  V;  Carrara,  "Opusculi," 
IV,  op.  10. 


§184]  EQUIVALENTS  FOR  PUNISHMENT  269 

be  an  excellent  preventive  remedy  against  a  mass  of  vengeances, 
vexations,  and  abuses.  A  remedy  will  also  be  found  in  a  strict 
and  expeditious  system  of  reparation  to  the  victims  of  crime, 
a  system  to  be  considered  as  a  social  function  confided  to  the 
public  ministry  in  cases  where  the  persons  injured  do  not  know 
or  are  unable  to  validate  rights  too  often  neglected.^  The  sim- 
plification of  legislation  will  prevent  many  frauds  on  citizens, 
who,  despite  the  legal  presumption  that  ignorance  of  law  is  no 
excuse  (while  in  reality,  there  is  no  one  who  knows  all  the  laws  of 
his  country),  cannot  know  the  whole  intricacy  of  promulgated 
laws  wherein  there  are  pretexts  for  so  many  citations  and  spoKa- 
tions.2  Commercial  laws  on  the  civil  responsibility  of  adminis- 
trators, on  bankruptcy  procedure  and  practice,  on  industrial 
detective  exchanges  for  information  and  vigilance,  are  better 
preventives  of  fraudulent  failures  than  hard  labor.^  Juries  of 
honor,  legally  recognized  and  encouraged,  could  oppose  a  more 
serious  obstacle  to  the  duel  than  ridiculous  penalties.*    A  well- 

1  See  P.  rV,  -pout. 

2  Spencer,  "  Essays  —  Too  Many  Laws,"  II. 

^  Filangeri,  "Scienza  della  legislazione,"  Lib.  II,  Cap.  XXIV;  Ferrario,  "I 
fallimenti"  (Milan,  1879);   Longhi,  "La  bancarotta"  (Milan,  1898),  pp.  229,  230. 

*  Duelling,  which,  in  spite  of  the  death  penalty,  torture,  and  the  Draconian 
edicts  of  Charles  IX,  Henry  II,  Louis  XIII,  and  Louis  XIV  in  France  (examples 
followed  elsewhere),  flourished  in  the  past  centuries,  has  almost  disappeared  in 
Europe,  now  that  the  penalties  are  so  reduced,  and  is  unknown  in  England,  due 
solely  to  public  opinion.  In  the  France  of  to-day  it  is  not  noticeable  that  they  in- 
crease remarkably  when  the  jury  leaves  them  impunished;  nor  do  they  become 
more  rare  when  the  jurisprudence  profits  by  the  silence  of  the  Code  on  this  ques- 
tion, to  assimilate  them  to  voluntary  homicides.  And  yet  some  people  in  France 
imagine  that  a  special  law  (offered  3  Dec,  1889,  by  the  Deputy  Cluseret)  could 
offer  an  efficient  remedy.  The  habit  of  considering  punishment  as  the  only  rem- 
edy for  crime  is  so  deep-rooted  that  not  only  did  Schopenhauer,  in  his  "Apho- 
rismus,"  suggest  the  infliction  of  a  dozen  blows  with  a  rod  in  the  Chinese  fashion 
for  every  one  who  sends  or  accepts  a  challenge,  but  even  the  drafts  of  the  ItaUan 
Penal  Code  increased  the  penalties  for  duelling;  the  Senator  Chiesi  would  have 
made  them  still  more  severe  in  accordance  with  the  inveterate  illusion  that  the 
frequency  of  delicts  comes  from  the  mildness  of  the  penalties  (Actes  du  Senat, 
Legisl.  XII,  Vol.  II,  p.  1078).  These  provisions,  thanks  to  the  fines  with  which 
duelists  are  menaced,  constituted  a  less  ridiculous  sanction  against  this  delict. 
But  the  detention  imposed  is  illusory  since  the  remedy  is  entirely  outside  of  the 
Penal  Code.  Vigliani  had  suggested  that  the  effects  of  the  duel,  if  it  had  not  first 
been  submitted  to  a  jury  of  honor,  should  be  punished  like  ordinary  homicides 
and  woundings;  in  this  way  the  law  would  have  the  advantage  of  in  some  degree 
encouraging  juries  of  honor;  this  provision  was,  however,  suppressed  in  later  modi- 
fications. It  seems  to  me  that  it  would  be  more  useful  to  say:  Duels  which  a  jury 
of  honor  has  declared  unavoidable  are  not  pimishable.  The  duel  which  in  serious 
cases,  among  the  Latin  and  Germanic  peoples,  cannot  be  prevented  by  the  fear  of 
punishment  alone,  would  serve  in  turn,  when  favored  with  this  conditional  im- 


270  DATA  OF  CRIMINAL  STATISTICS  [§  184 

organized  notarial  system  combats  documentary  forgeries  and 
frauds  in  the  same  way  that  Bureaus  of  civil  status  have  almost 
caused  the  disappearance  of  falsification  relative  to  persons  and 
the  substitutions  and  suppressions  of  children,  so  frequent  in 
the  Middle  Ages.^  And  if,  as  the  Deputy  IVliquelin  proposed, 
there  were  written  on  the  birth  register  of  every  person  his  civil 
status,  many  bigamies  could  be  avoided,  since  it  would  appear 
upon  the  birth  certificate  of  the  person  desirous  of  marrying 
without  any  further  investigation,  whether  he  were  free  to  marry 
or  not.^  A  more  intelligent  medical  examination  of  conscripts  for 
nervous  and  morbid  ailments  would  prevent  a  number  of  crimes 
which  are  often  very  serious,  such  as  misdeism.  Carrara '  re- 
marks that  a  great  nimiber  of  calumnies  and  false  denunciations 
are  avoided  by  pubUc  accusatory  process.  The  foundling  homes, 
orphanages,  or  still  better,  some  of  the  belated  successors  of  these 
institutions,  maternity  wards  and  aid  at  home  for  girl-mothers, 
can  prevent  many  infanticides,  abandonments  of  infants,  and 
abortion,  which  resist  the  severest  penalties.  By  putting  an 
end  to  the  crowding  of  prisoners,  by  abolishing  the  so-called 
remedies  of  admonition,  surveillance,  and  forced  domicile,  by  sup- 
pressing the  pitiable  absurdity  whereby  the  prison  is  preferable, 
in  point  of  comfort  and  diet  to  the  garret  of  the  honest  work- 
man or  to  the  cot  of  the  field  laborer,  —  there  would  be  a  reduc- 
tion in  the  number  of  crimes  which  are  often  committed  by  the 
unfortunate  in  order  to  find  food  and  covering  in  prison  and  to 
escap)e  the  vexations  of  poHce  surveillance.  Prisoners'  aid  socie- 
ties for  liberated  convicts,  and  especially  those  for  juveniles,  can 
usefully  replace  penalties,  although  of  less  efficacy  than  is  gen- 
erally believed.     They  have  against  them  the  thought  that  it 

punity,  to  take  the  place  of  penalties  for  sanguinary  affrays  and  revengeful  assas- 
sinations, which  are  only  too  frequent  in  some  regions:  it  would  be  a  relative  im- 
provement in  comparison  with  these  brutal  acts  of  violence.  See  Zani,  "  H  diritto 
secondo  la  legge  di  evoluzione"  (Mantua,  1881),  p.  27;  Berenini,  "Sul  duello," 
A.  P.,  V.  2,  1884;  "Offese  e  difese"  (Parma,  1886),  pp.  49  et  seq.;  Tessier, 
"Du  duel"  (Lyon,  1890). 

For  my  own  part  I  think  that  I  have  done  something  more  eflBcacious  against 
the  duel  by  giving  the  example  on  several  occasions  of  declining,  without  much  re- 
gard for  chivalrous  ceremony,  challenges  which  were  sent  me  by  two  deputies. 
The  history  of  England  from  1800  to  1850  proves  to  us  that  a  courageous  example 
in  high  places  is  the  best  way  to  deprive  the  duel  of  its  barbarous  halo  and  make 
this  sufficiently  grotesque  and  often  indirectly  criminal  custom  fall  into  disuse. 

^  EUero,  "Opuscoli  criminah"  (Bologna,  1874),  pp.  62,  77. 

*  A.  A.  C.  (15  July,  1886),  p.  383. 

'  Carrara,  "Opuscoli,"  Vol.  IV,  p.  291. 


§185]  EQUIVALENTS  FOR  PUNISHMENT  271 

is  better  to  protect  liberated  convicts  than  honest  unemployed 
workingmen,  to  whom  the  convicts  are  preferred.  Further,  until 
the  present  they  have  made  no  distinction  between  bom-crimi- 
nals and  delinquents  through  occasion  or  passion,  and  they  heap 
their  benefits,  be  they  ever  so  slight,  on  all  liberated  convicts 
alike,  even  the  incorrigible,  and  often  with  either  police  or  anti- 
preventive  formalities.  This  explains  why,  in  spite  of  so  many 
platonic  declarations  and  other  proofs  of  a  boundless  philan- 
thropy, administered  under  the  forms  of  direct  charity  (which 
is  less  useful  than  indirect),  these  societies  of  patronage  do  not 
prosper  in  any  country.  Even  Ln  England,  where  they  are  more 
flourishing  than  elsewhere,  their  action  is  really  insignificant, 
in  face  of  the  evil  whose  extension  they  seek  to  prevent. 

§  186.  Penal  Substitutes.    Religious  Order. 

History  and  criminal  psychology  bear  witness  that  a  corrupted 
religion  foments  criminality.  We  have  examples  of  this  in  ancient 
Rome  and  the  Rome  of  the  Middle  Ages  (with  its  apostolic  tariffs 
for  the  absolution  of  sins  ^)  and  in  the  religious  sects  of  America 
and  Russia  of  our  own  day.  Religion,  even  when  it  works  for 
the  common  good  and  not  for  the  profit  of  a  caste,  can  offer  only 
a  transitory  obstacle  to  crime  as  did  the  exhortation  of  Savana- 
rola  at  Florence  and  of  Father  Matthew  in  Ireland.  It  cannot 
exercise  any  inhibitive  function  against  the  atavistic  tendencies 
of  born-criminals  and  habitual  criminals,  being  limited  to  an 
ulterior  sanction  of  the  moral  sense,  which  seems  effective  when 
the  believer  has  a  moral  sense  but  which  drops  into  nothingness 
when  the  moral  sense  is  absent  or  atrophied.  The  prohibition  of 
processions  outside  of  churches  besides  insuring  the  respect  due 
to  the  convictions  of  all,  prevents  disorders  and  riots.  The  sup- 
pression of  monasteries  and  convents  removes  a  focus  of  criminal 
assaults  and  begging.  The  diminution  of  the  luxury  of  churches 
removes  a  strong  incentive  to  the  theft  of  precious  objects. 
The  abolition  of  pilgrimages  to  certain  shrines  prevents  many 
crimes  against  good  morals,  the  person,  and  property.  The 
marriage  of  the  clergy  would  avoid  many  infanticides,  abortions, 
adulteries,  and  criminal  assaults. 

1  Saint-Andre,  "Les  taxes  de  la  penitencerie  apostolique"  (Paris,  1879);  Ferri, 
"E  senthnento  religioso  nei  delinquenti,"  A.  P.,  V.  Q,  and  "L'Omicidio,"  Cap.  VI. 
In  a  contrary  and  reactionary  mood  see  Garofalo,  "  L'educazione  popolare  e  la  cri- 
minalita  in  Italia,"  a  lecture  delivered  at  Rome,  1896. 


272  DATA  OF  CRIMINAL  STATISTICS    [§§  186,  187 

§  186.  Penal  Substitutes.    Family  Order. 

Divorce  prevents  many  bigamies,  adulteries,  and  homicides. 
Aside  from  all  of  the  moral  and  civil  consideration  which  clearly 
militate  in  favor  of  divorce,  it  is  readily  seen  that  from  the  stand- 
point of  crime,  where  the  indissolubiUty  of  marriage  does  not 
permit  the  legal  severance  of  a  bond  which  has  become  mibear- 
able,  the  temptation  to  sever  it  by  criminal  means  often  becomes 
irresistible.^  By  giving  preference  to  married  men  in  certain 
civil  and  military  functions,  many  abuses  would  be  avoided, 
thanks  to  the  salutary  thought  of  the  family.  By  requiring  the 
civil  marriage  to  precede  the  religious  ceremony,  many  crimes 
of  bigamy,  infanticide,  murder,  and  assault  through  revenge, 
would  be  avoided.  The  prohibition  of  marriage  for  certain  per- 
sons would  diminish  the  multitude  of  delinquents  by  avoiding 
as  much  as  possible  the  fatal  inheritance  of  crime.  An  intelli- 
gent regulation  of  prostitution,  while  protecting  the  rights  of 
accidental  prostitutes  driven  to  the  evil  through  the  corruption 
of  environment  and  by  the  abuse  of  the  police  power,  would,  at 
the  same  time,  protect  society  against  prostitutes  with  a  con- 
genital tendency  and  serve  society  as  an  eflFective  remedy  against 
sexual  deUcts. 

§  187.  Penal  Substitutes.    Educational  Order. 

It  has  been  proven  that  a  purely  academic  education,  while 
Tendering  certain  services  and  preventing  certain  coarse  frauds, 
by  spreading  a  knowledge  of  the  laws  and  developing  foresight 
up  to  a  certain  point  (which  is  a  contrary  force  to  occasional  delin- 
quency), is  not  altogether  a  direct  and  effective  remedy  against 
crime,  and  the  schools,  when  they  are  badly  supervised  and  es- 
pecially when  they  are  not  secularized,  are  themselves  the  homes 
of  certain  crimes,  such  as  criminal  assaults.  For  the  very  small 
part  which  education  plays  as  a  determinant  of  individual  con- 
duct in  comparison  with  the  much  greater  influence  exercised  by 
conditions  determined  by  the  physical  and  social  environment, 
it  is  necessary  to  add  the  moral  training  which  results  not  from 

*  In  my  Italian  editions  (since  in  Italy,  in  this  year  of  grace  1904,  we  have  as 
yet  no  divorce),  I  considered  it  necessary  to  give  some  proof  of  this  truth,  which 
is  axiomatic  elsewhere,  from  comparative  statistics.  See'  the  4th  Ital.  Ed., 
pp.  438-444. 

[C/.,  also  Lisle,  "The  Bases  of  Divorce,"  "American  Jomnal  of  Criminal  Law 
and  Criminology,"  May,  1913,  Trans.] 


§187]  EQUIVALENTS  FOR  PUNISHMENT  273 

a  sterile  provision  of  empty  and  baseless  maxims,  but  from  lessons 
of  experience  and  example.  These  lessons  are  received  by  every 
social  class  from  its  leaders,  from  the  highest  chiefs  down  to  the 
humblest  instructors.  They  are  supplied  by  every  institution, 
the  government,  the  press,  the  professor's  chair,  and  the  preacher's 
pulpit,  the  theater,  the  public  holidays.  Thus,  the  suppression  of 
certain  cruel  spectacles  which  make  souls  savage,  the  suppres- 
sion of  gambling  houses,  and  so  on,  are  practical  measures  of 
social  education.  The  experimental  direction  of  pedagogy,  con- 
formably to  the  general  laws  of  physio-psychology  and  to  the 
systematic  physio-psychological  study  of  the  pupils  by  school- 
masters from  the  earliest  years,  by  better  adapting  education  to 
different  human  types,  by  making  it  less  archeological  and  by 
putting  it  more  in  harmony  with  the  necessities  of  life,  would 
make  men  more  capable  of  sustaining  the  fight  for  existence  and 
by  reducing  the  mass  of  declassed  persons,  woidd  dry  up  one 
fountain  of  the  excessive  number  of  criminals.  It  is  also  urgent 
to  improve  the  miserable  condition  of  the  teachers,  who,  obliged 
to  fight  against  "malesuadam  famem,"  cannot  profitably  devote 
themselves  to  popular  education,  of  which  they  are  the  indis- 
pensable pioneers.  The  abolition  of  a  great  many  holidays  con- 
tributes to  popular  education;  since  holidays  are  always  the 
occasion  of  numerous  crimes  and  misdemeanors  by  bringing  the 
people  together  for  enjoyment.  As  Lombroso  suggested,  hy- 
gienic and  gymnastic  amusements  could  be  substituted  which 
would  help  to  develop  physical  vigor  at  the  same  time  with 
strength  of  character  and  resistance  to  adversity.  Public  baths 
also  could  be  used,  since  attacks  against  the  person  more  often 
occur  in  the  warmest  climates  and  seasons.  And  finally,  free  or 
almost  free  theaters,  which  would  draw  the  people.  A  mass  of 
crimes  would  be  killed  in  the  germ  if  their  causes  were  removed, 
by  preventing  physical  degeneracy  through  physical  care  of  chil- 
dren, and  by  giving  school  children  nourishment  and  preventing 
perversion  through  the  education  of  neglected  children  with 
the  aid  of  public  schools,  protective  institutions,  farming  settle- 
ments, instruction  given  to  the  families  of  farmers,  and  the  like, 
following  the  example  set  especially  by  England  and  America; 
instead  of  waiting  until  the  evil  has  taken  on  gigantic  propor- 
tions and  having  recourse  to  a  useless  repression.^ 

^  The  protection  of  neglected  children  is  a  fundamental  means  for  the  replace- 
ment of  penalties  since  it  exerts  the  most  far-reaching  influence  on  thousands  of 


274  DATA  OF  CRIMINAL  STATISTICS  [§  188 

§  188.  Penal  Substitutes.    Neglected  Children. 

Neglected  childhood  is  the  source  and  the  seed  of  habitual 
criminality  and  recidivity.  In  its  epidemic  form,  it,  too,  is  a 
product  of  contemporary  industrialism,  which,  with  labor  day 
and  night  of  men  and  women,  has  destroyed  all  family  life,  forc- 
ing the  children  of  the  proletariat  to  grow  up  in  the  mud  of  the 
streets,  and  hence,  to  become  accustomed  to  begging,  p>etty 
thievery,  and  offenses  of  immorality,  even  when  they  are  not 
compelled  to  it  by  their  parents,  from  whom  poverty  has  taken 
every  himian  attribute.  The  absurdity  of  punishment  inflicted 
on  abandoned  children  is  flagrantly  obvious.  On  the  one  hand, 
as  an  "a  priori"  principle,  the  moral,  and  hence  legal,  irresponsi- 
biUty  of  the  child  is  conceded  by  grading  the  degree  of  free 
will  and  responsibihty  from  period  to  period  until  majority. 
There  is  always  the  prejudice  of  the  "ladder  of  crime"  according 
to  which  the  minor  before  becoming  a  great  criminal  ought  to 
begin  with  small  misdemeanors,  following  a  sort  of  bureaucratic 
career  in  crime.  The  truth,  on  the  contrary,  is,  that  neglected 
children  who  begin  with  small  misdemeanors  seldom  advance 
to  the  greater  crimes.  They  remain  the  microbes  of  the  criminal 
world,  chronic  but  harmless  in  their  criminal  relapses.  The  great 
criminals  commence  their  terrible  exploits  in  their  youth  and 
sometimes  in  their  infancy,  because,  as  we  have  seen,  precocity 
is  one  of  the  traits  of  the  criminal  by  birth. 

On  the  other  hand,  when  a  half  or  a  third  of  responsibihty  is 
attributed  to  the  minor  he  is  sent  to  prison,  a  school  where  he 
will  perfect  himself  in  the  art  of  crime  if  brought  in  contact 
with  criminals  worse  than  himself  and  where  his  physical  and 
moral  degeneracy  wiU  increase  if  he  remains  isolated  or  with 
other  minors.  Here  again  it  is  evident  that  for  this  seminary 
of  crime  in  place  of  repression  should  be  substituted  preventive 
means  which  should  be  suited  to  the  different  categories  of  this 
precocious  army  of  crime.     Distinction  should  be  made  between 

individuals  who  are  specially  predisposed  or  exposed  to  crime.  It  is  equivalent,  as 
a  sanitary  preventive,  to  the  boiling  of  water  in  times  of  cholera  or  tjphoid  epi- 
demic and  in  the  same  way  sterilizes  the  pathogenic  germs.  England  owes  the 
decrease  of  crime  largely  to  the  vigilant  and  extensive  care  given  to  neglected 
minors. 

In  France  there  is  the  law  of  24  July,  1889,  for  the  protection  of  ill-treated  and 
morally  abandoned  children  (R.C.,  1889,  pp.  618  et.  seq.)  —  and  changes  in  it  are 
contemplated.  There  is  also  the  law  of  19  April,  1898,  for  the  repression  of  vio- 
lence and  ill-treatment  toward  children. 


§188]  EQUIVALENT  FOR  PUNISHMENT  275 

abandoned  infants,  foundlings,  and  orphans,  the  greater  number 
of  whom  die  in  tender  years  while  the  others  almost  always 
become  outcasts  and  criminals.  There  is,  further,  morally  aban- 
doned infancy,  which  is  often  also  ill-treated  and  tortured  in- 
fancy. This  last  is  moreover  almost  always  the  victim  of  the 
hysteria  and  hystero-epilepsy  of  the  mother  when  not  the  victim 
of  a  cannibal-like  greediness.  In  England,  for  example,  there 
were  nineteen  thousand  httle  children  intentionally  allowed  by 
their  parents  to  die  that  the  latter  might  get  the  insurance 
money  —  this  during  a  period  of  five  years.  The  children  of 
convicts,  drunkards,  vagabonds,  and  beggars  constitute  the  sub- 
structure of  morally  abandoned  infancy  which  carries  the  hered- 
itary virus  of  degeneracy  in  its  veins.  In  addition  to  these 
there  are  the  hordes  of  children  abandoned  through  necessity 
by  their  parents  who  are  condemned  to  a  daily  isolation  in  mines 
or  shops.  Less  numerous,  but  more  dangerous,  are  the  last  two 
categories;  vicious  infancy  and  delinquent  infancy.^  As  for  alco- 
holism, so  all  sorts  of  remedies  have  been  tried  for  the  different 
categories  of  neglected  children,  categories  which  are  almost 
always  intermingled.  For  children  materially  abandoned,  a  solu- 
tion of  the  problem  of  girl-mothers  has  been  attempted  through 
relief  at  home,  through  laws  permitting  the  proof  of  paternity 
and  fixing  the  responsibility  for  seduction.  In  fact,  laws  have 
even  been  suggested  giving  legal  recognition  to  concubinage 
such  as  existed  in  Roman  law.  For  the  other  categories  there 
is  hesitation  between  two  systems:  assembling  the  minors  in  a 
species  of  barracks  (schools  of  correction,  industrial  schools, 
poorhouses,  and  public  schools),  and  placing  them  in  families, 
which  is  more  difficult  in  practice,  but  much  more  hygienic. 
England  is  the  classical  country  for  the  protection  of  aban- 
doned infancy ;  this  protection  has  been  accomplished  more 
through  private  initiative  than  through  official  action  and  on 
a  large  scale,  which  explains  the  decrease,  or  at  least  the 
arrested  increase,  of  natural  and  hereditary  delinquency  in  that 
country.  The  schools  for  the  poor,  industrial  schools,  reform 
schools,  have  an  average  of  about  48,000  children  a  year  (of  whom 
23,000  are  in  the  "  ragged  "  schools).  At  the  same  time  the  chari- 
table institutions  organized  to  prevent  crime  are  occupied  with 
one  hundred  and  ninety  thousand  children  almost  every  year. 

*  Ferriani,  "Minorenni  delinquenti" ;  Morrison,  "Juvenile  Offenders"  (Lon- 
don, 1896). 


276  DATA  OF  CRIMINAL  STATISTICS  [§  188 

Besides  this,  as  a  matter  of  private  initiative,  Dr.  Bernardo, 
among  others,  began  in  1866  to  concern  himself  with  the  little 
vagabonds  of  the  London  streets.  After  nourishing  them  and 
giving  them  some  education,  he  sent  them  to  the  colonies,  prin- 
cipally to  Canada,  where  they  became  workmen.  Perhaps  the 
economic  point  of  view  is  no  stranger  to  this  enterprise  of  Dr. 
Bernardo,  but  his  work  is  not  less  admirable  on  that  account  since 
he  cared  for  a  yearly  average  of  eight  thousand  minors  and  has 
already  placed  more  than  one  hundred  thousand,  eighty-five  per 
cent,  of  whom,  according  to  his  observations,  were  the  sons  of 
drunkards.  In  America,  the  Elmira  Reformatory  (foimded  and 
directed  by  Dr.  Brockway  for  the  application  to  the  improve- 
ment of  criminal  and  vicious  minors  of  the  principles  of  criminal 
anthropology  in  aid  of  a  physiological,  phychic,  and  disciplinary 
cure,  in  accord  with  the  data  of  physio-psychology  and  criminal 
pathology)  is  another  notable  effort  directed  by  the  principle  of 
segregation  during  an  indeterminate  time,  —  a  principle  after- 
wards adopted  by  the  legislature  of  many  States  of  the  great 
American  Union.  In  Teutonic  countries,  abandoned  children 
are  placed  in  honest  peasant  families.  If  the  exploitation  of  the 
children  is  avoided,  this  system  of  family  colonies  certainly  has 
advantages,  especially  when  compared  with  the  quartering  of 
minors  for  a  fixed  period  in  the  so-called  houses  of  correction. 
In  a  few  States  of  the  American  Union,  and  in  Denmark,  there 
is  a  combination  of  the  systems  of  large  establishments  with  that 
of  placing  minor  in  families.  Nevertheless,  for  neglected  child- 
hood, as  for  alcoholism,^  the  radical  remedy  will  be  found  only 
in  a  social  reorganization,  where  the  life  of  the  family,  on  the 
one  hand,  will  be  made  possible  and  agreeable  by  a  higher  stand- 
ard in  the  life  of  the  people,  and  in  which,  on  the  other  hand, 
the  school  will  effect  a  real  social  function,  nourishing  body  and 
mind,  and  will  no  longer  be  a  sterile,  bureaucratic  source  of  an 
entirely  superficial  and  literal  instruction.  Furthermore,  some 
of  these  sources  of  crime  would  be  absorbed  and  the  fatal  school 
of  crime  would  be  fought  by  prohibiting  immoral  publications, 
now  permitted  through  a  false  and  trifling  conception  of  liberty, 
which  is  satisfied  with  the  imprisonment  of  the  responsible  agents 
when  the  evil  is  already  done.  The  courts,  also,  should  cease  to 
furnish  demoralizing  spectacles  open  both  to  the  better  classes, 
who  frequent  them,  as  the  decadent  Romans  attended  the  cir- 
^  See  ante.    And  for  vagabondage  also  G,  §  18i2,  ante. 


§188]  EQUIVALENTS  FOR  PUNISHMENT  277 

cus,  and  to  minors  and  defectives,  who  come  there  to  learn  how 
to  commit  crime  with  greater  security.  Hence  the  minis- 
terial circulars  such  as  those  of  the  honorable  Vare,  for  example, 
which  seek  to  combat  these  dangerous  customs,  are  praiseworthy, 
at  least  for  their  good  intentions,  although  they  have  met  with 
no  success.  According  to  Fleury,^  by  suppressing  reserved  seats 
in  the  Belgian  courts,  a  very  notable  decrease  in  the  number  of 
spectators  of  the  higher  class  was  brought  about  in  the  same 
way  that  in  England  the  technical  character  of  the  legal  argu- 
ments, from  which  everything  of  a  theatrical  character  is  ex- 
cluded, has  singularly  diminished  the  number  of  idle  rich  and 
poor  who  in  other  countries  flock  there. ^  Especially  favorable 
to  popular  education  and  adverse  to  crime,  would  be  the  sup- 
pression of  the  false  glamour  of  crime  and  vice,  which  even  rulers 
sometimes  father,  when  crime  and  vice  serve  the  interests  of  the 
dominant  class,  or  are  committed  by  individuals  in  whom  that 
class  finds  unscrupulous  defenders. 

1  Fleury,  J.  E.  (November,  1874). 

'  Cruppi,  "La  cour  d'assises"  (Paris,  1898). 

The  relations  between  crime  and  publicity  (in  the  trials  and  in  the  press)  has 
been  discussed  with  animation  in  the  Litemational  Congresses  called  for  the  pur- 
pose at  Lausanne,  Geneva,  and  Paris.  Yet  there  is  exaggeration  (and  this  is  the 
case  with  d'Aubry)  of  the  determining  and  contagious  efficacy  of  newspapers  and 
books,  since  their  influence  is  exercised  only  on  individuals  predisposed  to  it  and  who 
for  this  reason  would  have  been  impelled  to  crime  by  any  other  stimulant.  In 
substance,  the  influence  of  publicity  seems  to  be  exercised  rather  on  the  manner 
of  committing  crime  and  by  way  of  imitation,  than  on  the  decision  to  commit  it, 
since  to  be  a  criminal  it  is  not  sufficient  to  desire  it.  Again,  the  liberty  of  the  press 
(except  when  it  amoimts  to  a  formal  assault  upon  morals)  is  too  essential  to 
civil  life  for  its  abolition  or  restriction,  with  a  view  to  avoiding  some  inconveniences 
which  are  always  inevitable.  Thus,  as  I  shall  say  presently,  we  must  examine  which 
is  the  lesser  of  two  evils;  to  suppress  an  institution  or  to  sufiFer  in  preserving  it 
some  inconveniences  that  are  compensated  by  greater  advantages.  Yet  it  is  cer- 
tain that  if  the  enormous  advertisement  given  criminals  and  crimes  by  the  papers 
is  controlled  by  the  force  of  public  opinion  (rather  than  by  police  restrictions,  it  will 
be  a  great  advantage,  all  the  greater  because  it  will  be  the  natural  fruit  of  a  more 
satisfactory  civilization.  For  the  influences  of  the  press  exercised  only  on  per- 
sons predisposed  by  degeneracy  or  a  psycho-pathological  condition,  see  Ferri, 
"V  Omicidio,"  pp.  562,  563  and  414. 


CHAPTER  VI 

PREVENTION   AND   REPRESSION 

Fundamental  identity  of  prevention  and  repression.     The  fight  against  crime 
and  its  radical  transformation. 

§  189.  Social  Prevention  More  Effective  Than  Penal  Laws. 
The  examples  just  given  and  which  could  be  made  into  a  pre- 
ventive code  opposing  the  penal  code  article  by  article  show  clearly 
the  enormous  importance  of  the  social  factors  of  crime,  which 
depend  upon  the  manner  in  which  all  of  the  parts  of  the  social 
organism  interact.  They  show,  even  better  than  the  legislator, 
how  a  change  in  these  factors  effectively  corrects  the  advance  of 
criminaUty,  within  the  Umits  marked  by  the  concurrence  of  other 
criminal  factors,  and,  hence,  marked  by  the  law  of  criminal  satura- 
tion. Quetelet  was  right  when  he  said  in  this  connection:  "As 
the  crimes  annually  committed  seem  to  be  an  unavoidable  result 
of  our  social  organization  and  as  the  number  cannot  be  decreased 
until  the  causes  from  which  they  spring  are  modified,  it  follows 
that  it  is  the  function  of  law-makers  to  recognize  and  destroy 
these  causes  as  much  as  possible.  It  is  their  function  to  make 
up  the  budgets  of  crime  as  they  make  up  the  receipts  and 
expenses  of  the  treasury."  ^  This  may  be,  and  in  fact,  is  true, 
but  it  must  not  be  forgotten  that  all  of  this  should  be  done 
outside  of  the  penal  code.  Strange  as  this  may  seem  at 
first  glance,  it  is  the  truth,  as  proven  by  history,  statistics,  and 
the  direct  observation  of  phenomena,  that  the  penal  laws  are 
the  least  efficient  in  the  prevention  of  crime,  since  the  principal 
role  falls  to  laws  of  an  economic,  political,  and  administrative 
order.  Indeed,  as  Ellero  says,  "The  role  of  penalties  is  purely 
negative  and  comes  only  in  the  last  rank."  ^  They  do  not  re- 
member the  occasions  of  crime  which  operate  in  the  individual 
and  in  the  environment.  At  the  most  they  retard  for  a  time  (if 
they  do  even  that)  the  torrent  of  weaker  impulsions  which  are, 
however,  always  ready  to  overflow.    Moreover,  in  the  penal  code 

•  QuHelet,  "Physique  sociale,"  Lib.  IV,  §8. 

*  Ellero,  "Opuscoli  criminali,"  p.  53. 
.  878 


§189]  PREVENTION  AND  REPRESSION  279 

itself,  because  of  this  indirect  dynamic  effort  of  psychic  forces,  of 
which  I  have  already  spoken,  the  law-maker  should  change  his 
present  course  and  give  greater  influence  to  pecuniary  fines,  ca- 
pable of  adjustment  to  the  ofiFense  and  the  offender. 

Compared  with  imprisonment,  they  have  the  advantage  of  being 
less  violent  and  direct,  and,  hence,  their  effect  is  more  certain  be- 
cause, as  MachiaveUi  said,  men  give  up  their  life  more  willingly 
than  their  money.  It  should  also  be  considered  that  pecu- 
niary penalties  are  capable  of  an  easy  and  economic  applica- 
tion; that  they  can  be  greatly  raised  and  thus  reimburse  the 
State  and  the  victims  of  the  crimes;  finally,  that  they  are  a 
real  antidote  against  the  madness  of  sudden  wealth.  Yet 
the  legislator,  consulting  the  data  of  criminal  statistics,  should 
oppose  these  penalties  to  the  misdeeds  that  are  prefer- 
ably committed  by  the  well-to-do  and  hence,  solvent  classes, 
without  renouncing  detention  which  is  appropriate  in  the  most 
serious  cases:  such  as  hired  assassinations,  and,  in  general,  the 
serious  attempts  against  the  person  and  against  morals  —  bank- 
ruptcy, forgery  of  commercial  and  oflScial  documents,  extortions 
and  bribery,  peculation,  abuse  of  authority,  theft  of  public  docu- 
ments, and  duels.  Power  should  be  given  to  the  judge  to  remit 
fines  in  cases  of  poverty;  for  the  substitution  of  imprisonment  for 
fines  is  an  iniquitous  survival  of  the  barbarous  laws  which  in 
primitive  times  permitted  the  creditors  to  divide  the  body  of  the 
debtor  among  themselves,  and  later  established  the  debtor's 
prison,  which  civihzation  has  condemned  and  abandoned.^  In 
a  word,  the  legislator,  conforming  to  the  lessons  of  scientific  ex- 
perience, should  realize  that  social  reforms  have  much  more 
power  to  prevent  the  overflow  of  crime  than  penal  codes.  His 
task  is  to  maintain  the  health  of  the  social  body.  He  should, 
therefore,  imitate  the  physician  who  preserves  the  health  of 
individuals;  and  as  little  as  possible  and  only  in  extreme  cases, 
within  the  limits  of  strict  necessity,  have  recourse  to  the  violent 
methods  of  surgery.  He  should  have  but  very  limited  confidence 
in  the  problematical  value  of  remedies  and  should  rely  upon  the 
safe  and  continuous  services  of  hygiene.  In  social  defense  against 
crime  and  in  the  moral  uplift  of  the  people,  the  slightest  progress 

1  The  new  Italian  Penal  Code  inflicts  pecuniary  penalties  more  often,  especially 
for  contraventions.  But  as  it  keeps  in  mind  specially  the  crimes  usually  inspired 
by  cupidity  rather  than  those  which  are  more  frequently  committed  by  the  well- 
to-do,  it  has  in  this  particular,  also,  stopped  short  of  the  proprieties  and  necessities 
of  social  life. 


280  DATA  OF  CRIMINAL  STATISTICS  [§  190 

in  the  reforms  of  social  prevention  is  worth,  a  hundred  times  and 
more,  the  pubUcation  of  a  whole  penal  code.  Indeed,  legisla- 
tors now  use  what  might  be  called  the  method  of  blood-letting. 
Like  physicians  of  other  days,  who,  Uttle  versed  in  experimental 
diagnosis  and  prophylaxis  of  individual  diseases,  treated  them  all 
more  or  less  by  blood-letting  in  order  to  drive  out  of  the  body  the 
"evil  humors, "  so  our  legislators  of  today,  with  all  the  phenomena 
of  social  pathology  before  them,  have  recourse  to  blood-letting, 
imprisonment  appUed  in  stronger  or  weaker  doses.  First  of  all, 
they  fail  to  learn  that  in  reaUty  this  so-called  remedy  never  cures 
either  society  or  individuals.  Then,  too,  they  do  not  see  that, 
the  greater  part  of  the  time,  they  neutralize  whatever  action  a 
law  could  have,  by  always  innoculating  the  social  body  with  new 
"evil  humors,"  by  the  incoherent  mass  of  other  laws.  When  a 
new  law  is  proposed,  for  example,  on  the  customs  duties,  divorce, 
railways,  the  treatment  of  employees,  taxation,  industrial  free- 
dom of  association,  or  any  civil  and  commercial  reform,  very  few 
people  —  nobody,  so  to  speak  —  think  of  the  disturbance  that 
these  innovations  may  cause  in  the  crimlnaUty  of  the  people,  be- 
cause they  beUeve  that  the  measures  on  which  criminality  depends 
have  been  taken,  and  that  changes  in  the  penal  code  are  the  only 
necessary  remedies.  We  should  not  fooUshly  boast  of  the  sup- 
pression of  evil.  Let  us  not  forget  that  if  law  is  inseparable  from 
society,  a  law  necessarily  involves  crimes  in  its  violation.^  Ex- 
istence imposed  a  struggle,  and,  as  I  have  said  elsewhere,  this 
struggle  is  kept  up  either  by  honest  or  economic  activity  or  by  dis- 
honest and  criminal  activity. 

§  190.   Inevitability  of  Social  Friction.     Crime  Unavoidable. 

Again,  in  the  social  organism,  as  in  every  other  organism, 
there  are  inevitable  frictions.  It  is  absurd  to  confuse  order  with 
the  apathy  or  stagnant  inertia  of  an  enervated  and  servile  people 
and  to  make  a  trembling  appeal  to  the  police  and  the  courts 
whenever  a  leaf  rustles.  Social  order  cannot  eliminate  shock  and 
friction  in  all  the  parts  of  the  collective  organism.  All  that  can 
be  done  is  to  reduce  to  a  minimum  the  more  or  less  criminal  shocks 
and  frictions.  And  we  already  know  that  penalties  are  far  from 
being  the  most  effective  and  most  appropriate  instruments  in 

*  It  is  in  this  sense  that  Bentham  said:  "To  create  rights  and  obligations  is 
equivalent  to  creating  crimes,"  "  Vue  generale  d'un  corps  complet  de  legislation," 
Chap.  III. 

V 


§191]  PREVENTION  AND  REPRESSION  281 

attaining  this  result.  These  general  remarks  which  I  have  just 
presented  on  the  theory  of  equivalents  for  penalties  in  relation 
to  the  law  of  criminal  saturation  (which  were  already  found 
in  the  preceding  editions)  are  enough  to  meet  the  two  principal 
objections  which  have  been  addressed  to  me  by  a  few  of  those 
who  at  bottom  have  really  accepted  my  theory. 

§  191.   Penal  Substitutes.     A  General  Argument. 

They  say,  on  the  one  hand,  that  some  of  the  equivalents  for 
penalties  proposed  by  me  have  already  been  applied  and  have  not 
prevented  criminality.  On  the  other  hand,  they  say  that  it  would 
be  absurd  to  abolish  certain  institutions  solely  because  the  trans- 
gression would  also  be  abohshed.  I  answer,  first  of  all,  that  the 
equivalents  for  penalties  are  not  intended  to  render  every  mis- 
deed impossible,  whatever  its  nature,  which  would  be  absurd,  but 
rather  to  diminish  the  causes  of  misdeeds  and  hence  to  suppress 
the  misdeeds  themselves  more  or  less  completely.  There  are 
still  acts  of  piracy  committed;  but  it  is  none  the  less  true  that 
steam  navigation  (taking  the  place  of  penalties  in  this  par- 
ticular) has  been  a  hundred  times  more  efficacious  than  all  the 
laws.  There  are  still  murders  committed  in  the  trains,  but  the 
substitution  of  tramways  and  railroads  for  the  stage  coaches  of 
other  days  has  none  the  less  been  a  powerful  equivalent  for  pen- 
alties and  has  enormously  reduced  the  number  of  armed  robberies, 
with  or  without  homicide.  In  like  manner  divorce  does  not 
absolutely  prevent  one  spouse  from  killing  the  other,  but  it  makes 
this  crime  rarer.  Finally,  the  measures  taken  on  behalf  of  neg- 
lected children  certainly  do  not  cause  the  prisons  to  be  closed 
for  lack  of  convicts;  but  they  do  exhaust  in  a  great  degree  these 
fountains  of  crime  that  our  codes  permit  to  spread.  And  the 
same  is  true  of  other  penal  substitutes.  I  have  already  said 
(apropos  of  the  institutions  and  prohibitions  in  force)  that  whether 
their  suppression  would  cause  a  greater  evil  than  that  which 
comes  from  their  transgression  should  surely  be  examined.  Later 
I  revolted  especially  against  the  widespread  illusion  by  which 
people  are  persuaded  that  to  remedy  a  social  disorder  nothing  can 
be  done  except  to  multiply  prohibitions  and  punishments,  being 
blind  to  the  effects  which  always  reappear,  instead  of  seeking  and 
suppressing  the  causes  when  possible,  or  at  least  in  weakening  them 
by  indirect  measures  and  making  them  as  little  offensive  as 
possible.    I  made  a  criticism  of  the  equivalents  for  penalties  that 


282  DATA  OF  CRIMINAL  STATISTICS  [§192 

had  not  been  made  by  others,  to  the  eflFect  that  its  appUcation  is 
very  diflficult.  It  is  enough  to  think  even  of  the  prodigious  quan- 
tity of  habits,  traditions,  and  contrary  interests,  which  must 
be  overcome  in  order  to  apply  it  all  at  once.  The  equivalents  for 
penalties  indicated  for  the  different  orders  of  social  activity  show 
this:  A  great  number  of  them,  such  as  measures  against  alcohol- 
ism, in  favor  of  neglected  infancy,  or  for  making  the  administra- 
tion of  justice  quicker  and  easier,  imply  not  a  single  reform  but 
entire  systems  of  numerous  and  coordinate  reforms. 

§  192.  The  Importance  of  the  Theory  of  Penal  Substitutes. 
But  (and  I  do  not  tire  of  repeating  it)  the  importance  of  equiva- 
lents for  penalties  is  not  in  the  practical  value  of  this  or  that 
isolated  proposition.  The  object,  the  soul  of  the  theory  is  to 
eliminate  or  at  least  weaken  the  mental  habit  of  thinking  of 
penal  laws  as  the  only  means  of  avoiding  the  phenomena  of  social 
pathology.  Of  course,  even  in  private  life,  it  is  tiresome  and 
difficult  to  follow  continually  the  rules  of  hygiene.  It  is  easier, 
although  more  dangerous,  to  forget  them  and  wait  until  the  mal- 
ady appears  and  then  have  resource  to  the  more  or  less  illusory 
remedies  of  medicine.  But  this  public  and  private  improvidence 
itself  is  exactly  what  needs  correction.  As  hygiene  was  impos- 
sible, both  in  theory  and  practice,  before  the  observations  and 
experiments  of  physio-pathology  on  the  causes  of  disease,  espe- 
cially epidemic  and  infectious  diseases,  and  before  the  discoveries 
of  bacteriology;  so,  in  like  manner,  social  hygiene  against  crime 
was  only  possible  as  a  theory  and  can  only  be  possible  in  prac- 
tice through  the  discoveries  and  dissemination  of  the  data  of 
criminal  anthropology  and  criminal  sociology  and  a  knowledge  of 
the  natural  factors  of  crime,  especially  of  the  factors  of  more  or 
less  epidemic  occasional  criminality.  Let  me  further  add  that 
legislators  and  statesman  must  really  take  the  present  physical 
and  psychic  conditions  of  the  people  into  account  in  order  to  gov- 
ern and  solve  the  greater  or  lesser  difficulties  under  more  or  less 
favorable  circumstances  of  time  and  place.  Science,  on  the  con- 
trary, need  only  designate  the  object,  however  distant  and  difficult 
of  attainment  it  may  be.  The  first  condition  for  enacting  legis- 
lative and  social  reforms  is  that  they  shall  first  be  impressed  upon 
the  pubhc  conscience.  This  can  be  effected  only  when  science, 
in  spite  of  the  transitory  difficulties  of  the  movement,  resolutely 
and  without  any  of  the  hybrid,  sterile,  and  impotent  compromises 
V 


§§  193,  194]    PREVENTION  AND  REPRESSION  283 

of  an  eclectic  opportunism,  points  out  the  route  to  follow  and 
the  ideal  to  be  realized. 

§  193.   Prevention  of  Crime  a  Duty  for  the  Criminologist. 

To  all  that  I  have  said  so  far,  two  principal  objections  can  be 
made.  The  first  is,  that  this  outline  of  a  system  of  equivalents  for 
penalties  is  nothing  more  than  the  ordinary  prevention  of  mis- 
deeds. The  second  is,  that  it  does  not  concern  the  criminalist, 
because  prevention  is  less  a  science  than  an  art,  the  art  of  good 
government,  quite  distinct  from  the  true  science  of  crimes  and 
penalties.  It  will  be  more  convenient  to  treat  of  the  second 
assertion  in  the  next  chapter  ^  and  in  the  final  conclusion;  hence, 
I  shall  say  a  few  words  about  the  first.  My  reply  is,  that  since 
Montesquieu  and  Beccaria,  the  utility  of  the  prevention  of  mis- 
deeds has  been  known.  That  utility  is  certain  yet  it  is  proclaimed 
only  in  platonic  and  isolated  declarations  and  not  followed  up 
by  a  systematic  development,  which,  with  the  support  of  criminal 
sociology,  could  lead  to  immediate  applications  in  practice.  We, 
however,  beguming  with  the  observation  of  facts,  have  arrived  at 
a  very  different  conclusion,  more  prolific  of  results:  namely,  that 
given  the  quasi-impotence  of  penalties  against  crimes,  prevention, 
instead  of  being  an  accessory,  should  be  the  principal  guarantee 
of  social  order.  What  is  most  important  to  remark  is  the  differ- 
ence between  simple  prevention  of  crimes,  in  the  ordinary  sense, 
and  the  equivalents  for  penalties,  and  between  police  prevention 
and  social  prevention.  The  first  is  limited  to  the  prevention  of 
the  misdeed  when  its  germ  has  already  developed  and  its  execution 
is  threatened.  It  generally  employs  only  means  of  direct  constraint 
which,  of  a  repressive  nature  themselves,  have  already  been  em- 
ployed without  success  and  often  only  provoke  new  crimes.  On 
the  contrary,  social  prevention  goes  back  to  the  remote  origin 
of  crime  in  order  to  suppress  the  first  germs.  It  seeks  out  the 
different  anthropological,  physical,  and  social  factors  of  criminal 
phenomena  and  fights  them  entirely  by  indirect  means,  based 
on  the  free  play  of  physiological  and  sociological  la 

§  194.    No  Science  of  Criminal  Prevention. 

Science  (and  legislation  as  well)  has  until  now  given  too 
exclusive  a  preference  to  repression,  or  at  least  to  police  pre- 

1  G.  §  196  et  seq.,  post. 


284  DATA  OF  CRIMINAL  STATISTICS  [§194 

vention  in  the  works  on  the  science  of  good  government,  and 
especially  in  French  works.  In  legislation,  says  Bentham,  the 
part  which  has  been  given  preference  over  all  others  is  the  pen- 
alty, because  it  is  only  too  natural  and  convenient  to  say  that 
in  order  to  avoid  certain  acts  they  must  be  punished,  and  be- 
cause prevention  is  the  most  difficult  part,  the  part  which  requires 
the  longest  observations  and  the  deepest  reflection.  EUero  adds 
that  there  are  magistral  works,  foUos,  which  treat  not  of  punish- 
ment but  of  torture,  and  that  none  are  to  be  found  in  which  the 
author  concerns  himself  in  the  search  for  a  possible  substitute  for 
punishment.  Montesquieu,  Filangieri,  Beccaria  (in  a  few  of  his 
pages),  and  more  recently  Tissot,^  speak  of  the  influence  exerted 
by  the  form  of  government,  religion,  climate,  and  soil  on  the 
penal  system,  but  not  of  the  manner  of  preventing  crimes.  The 
handful  of  writers  who  have  treated  this  subject  with  larger  and 
more  systematic  views  (to  mention  only  the  most  important, 
disregarding  those  who  have  more  or  less  followed  the  spirit  of  the 
positive  school  in  their  writings  on  criminal  sociology)  are  Ben- 
tham,2  Romagnosi,'  Barbacovi,*  Carmignani,^  EUero,^  and 
Lombroso.^  Inspired  by  a  more  positive  spirit  and  not  doc- 
trinaires with  criminal  theories,  they  study  rather  preventive 
reforms  by  the  experimental  method.  But  even  these  learned  men 
are  either  limited  to  general  and  synthetic  considerations,  Uke 
Romagnosi  and  Carmignani;  or  else,  descending  into  the  domain 
of  facts  without,  however,  losing  sight  of  the  preventive  defense 
of  society,  they  have  largely  neglected  the  physio-psychological 
laws  relative  to  the  natural  factors  of  crime,  which  alone  could 
furnish  efficacious  means  for  the  regulation  of  human  activity. 
They  have  always  definitely  retained  punishment  itself  as  the 
principal  means  of  prevention.  Their  teachings,  having  no  more 
solid  base  than  abstract  reasonings,  have  on  this  account  fallen 
into  discredit  since  they  had  no  foundation  to  bear  the  edifice. 
The  authority  of  facts  (an  authority  which  always  succeeds  in 
imposing  itself)  was  lacking  in  them.    Without  the  aid  of  crimi- 

1  Tissot,  "Le  droit  penal,"  2d  ed.  (Paris,  1880),  II,  pp.  940  et.  seq. 

*  Bentham,  "Treatise  on  Legislation,  Principles  of  a  Penal  Code." 
'  Romagnosi,  "Genesi  del  diritto  penale,"  P.  V. 

*  Barhacovi,  "De  criminibus  avertendis"  (1815),  and  Discourse  XIII  on  the 
"Scienza  della  legislazione"  (Milan,  1824). 

*  Carmignani,  "Teoria  delle  leggi  di  sicurezza  sociale,"  Lib.  Ill,  Part  3. 

*  EUero,  "Della  prevenzione  dei  crimini,"  in  the  "Opuscoli  criminaU." 
^  Lombroso,  "  L'incremento  del  deUtto  in  Italia." 


§195]  PREVENTION  AND  REPRESSION  285 

nal  sociology  they  could  not  prove  to  a  certainty  that  penalties 
have  not  the  efficacy  commonly  attributed  to  them  and  that  it  is 
necessary  to  resort  to  surer  means.  "Now  if  these  means  have 
hitherto  been  neglected,  it  is  because  there  is  nothing  more  cal- 
culated to  discredit  and  to  make  useless  the  means  which  are 
efficacious  in  regulating  human  conduct,  than  the  employment 
of  those  means  which  are  not."  ^ 

§  196.     Crime  is  Pathological.     Need  of  Prevention. 

We  have  just  indicated  the  principal  theoretical  and  practical 
relations  of  criminal  statistics  with  criminal  sociology,  and  they 
may  be  summed  up  in  the  following  conclusion.  In  the  same 
way  that  misdeeds  are  natural  phenomena  resulting  from  different 
factors,  so  also  there  is  a  law  of  criminal  saturation,  in  virtue  of 
which  the  physical  and  social  environment,  combined  with  heredi- 
tary and  acquired  tendencies  and  occasional  impulsions,  deter- 
mines in  a  necessary  way  the  quota  of  misdeeds.  The  things 
which  influence  the  criminality  of  a  people  in  the  natural  order 
are  their  individual  and  telluric  conditions.  In  the  social  order, 
more  than  the  penal  code  and  with  much  greater  intensity,  they 
are  the  economic,  political,  administrative,  and  civil  conditions 
and  laws.  The  problem  of  the  fight  against  crime  presents  two 
different  aspects,  both  far  removed  from  the  simple  barbarism 
of  penal  repression.  For  crime,  in  its  atavistic  and  anti-human 
forms  (forms  contrary  to  the  imminent  and  fundamental  con- 
ditions of  human  existence),  and  in  its  evolutionary  or  pohtically 
anti-social  manifestations  (manifestations  contrary  to  the  transi- 
tory order  of  a  given  society),  is  not  the  fiat  of  free  will  and  human 
perversity,  but  is  rather  an  effect  and  symptom  of  individual 
pathology  in  its  atavistic,  and  social  pathology  in  its  evolutionary 
forms.  The  function  by  which  society  is  preserved  from  crime 
should  undergo  a  complete  change  of  orientation.  It  should  cease 
to  be  a  belated  and  violent  resistance  to  effects  and  should  diag- 
nose and  eliminate  the  natural  causes.  This  f miction  must  be 
advanced  as  a  preventive  defense  of  society  against  natural  and 
statutory  crime.  Now  these  equivalents  for  penalties  represent 
not  so  much  partial  and  passing  reforms  as  mental  discipline  to 

^  Stuart  MiU,  "On  Liberty." 

Sometimes  even  legislators  have  established  equivalents  for  penalty  but  with 
a  rebound.  This  is  what  was  done  in  Italy  (and  I  proved  it  in  my  ItaUan  editions) 
in  the  Codes  of  penal  procedure  and  penal  law  and  in  other  statutes.  See  4th  ed., 
pp.  462  et  seq. 


286  DATA  OF  CRIMINAL  STATISTICS  [§195 

be  followed  in  the  solution  of  the  problem,  of  which  the  final  con- 
clusion of  this  work  will  afford  another  aspect  in  the  symbiosis 
or  utilization  of  the  tendencies  of  delinquents,  according  to  the  idea 
advanced  by  Lombroso.  Since,  however,  the  absolute  disappear- 
ance of  every  crime-breeding  condition  is  humanly  impossible 
(even  in  a  social  organization  capable  of  eliminating  the  epidemic 
and  most  common  forms  of  crime)  there  will  always  be  a  need  of 
a  system  of  defense  against  the  sporadic  and  acute  eflFects  of 
criminal  frenzy.  This  agrees  at  every  point  with  the  universal 
law  of  evolution,  according  to  which,  in  the  continual  variation  of 
animal  and  social  organisms,  the  earlier  forms  are  never  com- 
pletely eliminated  but  persist  as  the  basis  of  ulterior  forms.^ 
Consequently,  the  evolution  of  the  social  function  of  defense 
against  misdeeds  will  be  produced  in  the  direction  of  a  transition 
from  the  forms  of  physical  and  direct  coercion  to  forms  of  a  psy- 
chical and  intellectual  re-training  of  human  activity,  obtained  by 
a  change  in  the  conditions  of  life  of  both  the  individual  and  so- 
ciety. But  this  is  not  saying  that  the  primitive  forms  are  to 
disappear  completely. 

A  critical  examination  of  the  difficulties  encountered  by  the 
criminalist  of  our  day,  far  from  leading  to  the  negation  of 
penal  function  and  penal  science,  confirms  their  rational  and 
political  necessity,  although  it  limits  considerably  their  social 
importance  and  profoundly  changes  their  spirit  and  object, 
in  accordance  with  the  data  of  anthropology  and  criminal 
statistics.  This  data,  as  we  shall  see  in  the  following  chapters, 
frees  from  all  penalties  every  form  of  human  activity,  which  does 
not  constitute  or  is  not  accompanied  by  a  manifestation  of  ata- 
vistic criminality.  Against  this  criminality,  the  purely  and  stu- 
pidly repressive  function  will  be  transformed  into  a  clinic,  by 
which  society  will  be  preserved  from  the  disease  of  crime  as  from 
any  other  physical  or  mental  disease.  In  the  meantime,  to  con- 
clude this  examination  of  the  data  of  criminal  statistics,  which  have 
thrown  light  on  the  social  factors  in  the  genesis  of  crime,  I  shall 
sum  up  my  thought  in  the  modification  of  an  old  comparison  which 
has  been  singularly  abused.  Misdeeds  in  their  entirety  are  com- 
pared to  an  impetuous  torrent  which  should  be  met  by  the  dykes 
of  punishment  to  prevent  society  from  being  inundated  and  sub- 
merged.   I  do  not  deny  that  penalties  are  the  dykes  of  crime;  but 

^  Ardigb,  "Le  formazione  naturale,"  in  the  "Operefilosofiche"  (Padua,  1884), 
Vol.  II. 

V 


§195]  PREVENTION  AND  REPRESSION  287 

I  assert  that  these  dykes  are  too  weak  to  be  useful.  In  the  same 
way  that  sad  and  incessant  experience  teaches  that  material 
dykes  are  an  insufficient  protection  from  overflows  of  rivers  (par- 
ticularly at  the  moment  when  the  latter  are  most  formidable), 
so  also  statistics  prove  that  penalties  offer  but  insignificant  resist- 
ance to  the  assaults  of  criminahty,  once  the  social  environment 
has  developed  its  fatal  germs.  Penalties,  like  the  dykes  at  low 
water,  are  but  useless  scarecrows  against  those  who  are  neither 
disposed  nor  forced  to  do  evil.  But  as  (according  to  the  natural 
laws  of  hydrodynamics)  the  surest  means  of  contending  with 
floods  is  the  reforesting  of  the  mountains  near  the  headwaters 
and  straightening  and  deepening  the  rivers  and  improving  their 
mouths;  so,  also,  in  protecting  society  from  crime,  it  will  be  wiser 
to  use  the  equivalents  for  penalties,  also  based  upon  the  natural 
laws  of  psychology  and  sociology,  and  which  are,  therefore,  not 
only  more  humane  but  much  more  effective  than  all  the  obsolete 
weapons  of  the  arsenals  of  the  ancient  penality. 


PART   III 
POSITIVE   THEORY   OF   PENAL   RESPONSIBILITY 

CHAPTER  I 

THE  NEGATION  OF  THE  FREE  WILL 

Postulate  of  the  Classical  School  denied  by  positivist  physio-psychology;  and  in 
any  event  disputable  in  theory  and  dangerous  in  practice.  The  n^ation 
of  free  will.     Eclectic  compromise  on  moral  liberty. 

§  196.  Problem  of  Penal  Responsibility. 
The  most  radical  and  hence  the  most  contested  conclusion 
(even  by  those  who  are  strangers  to  penal  studies)  brought  home 
by  the  new  data  of  anthropology  and  statistics  on  crime  and 
those  who  commit  it,  has  been,  and  is,  the  new  way  of  stat- 
ing and  solving  the  fundamental  problem  of  responsibiUty. 
The  technical  results  of  biology  and  criminal  sociology,  the  pro- 
posals of  practical  reforms  in  systems  of  procedure  and  repres- 
sion, may  be  and  are  admitted,  wholly  or  in  part,  even  by  those 
who  do  not  follow  the  method  and  inductions  of  the  positive 
school.  Still,  the  revolt  of  the  enemies  of  every  novelty  against 
the  positive  school  appears  and  persists  both  in  the  irreconcilable 
attitude  of  classical  purism  in  opposition  to  reform  and  in  the 
thousand  accommodations  of  academic  eclecticism,  especially 
when  there  is  question  of  the  criteria  and  bases  of  penal  responsi- 
bility.^ This  is  because  the  problem  necessarily  goes  outside 
of  the  technical  limits  of  criminology  to  test  and  shatter  the 
mass  of  mental  and  sentimental  habits  which  constitute  the 
social  dogma  of  human  responsibility,  even  outside  of  the  penal 
domain,  and  to  modify  the  ideas  and  norms  of  merit  and  de- 
merit, of  reward  and  pimishment,  of  vice  and  virtue,  in  every 
manifestation  of  civil  life,  in  the  moral  as  well  as  in  the  eco- 
nomic field,  in  the  family  as  in  the  school  and  in  social  life. 

1  A  recent  notable  example  of  this  is  foimd  in  Saleilles  "Individualization  of  Pun- 
ishment" (Modem  Criminal  Science  Series,  Volume  IV),  where  the  author  ac- 
cepts the  practical  propositions  of  the  positive  criminal  school,  but  has  not  courage 
enough  to  abandon  the  metaphysical  principles  on  human  responsibility. 

288 


§§  197,  198]     THE  NEGATION  OF  THE  FREE  WILL        289 

And  this  confirms  the  fact  mentioned  in  the  introduction, 
namely,  that  this  new  position  of  the  science  of  crime  and  pmiish- 
ment  depends  intimately  on  the  general  renovation  observed  since 
1850  in  philosophical  thought  as  the  result  of  the  experimental 
method. 

§  197.   Basis  of  the  Right  of  Ptmishment. 

The  habitual  reasoning  by  which  public  sentiment,  traditional 
philosophy,  and  classical  criminal  science  justify  the  right  to 
punish  man  for  his  misdeeds  is  reducible  to  this:  man  possesses 
free  choice  or  moral  hberty;  he  can  will  either  good  or  evil,  —  and 
hence,  if  he  chooses  evil  he  is  responsible  for  his  choice  and  should 
be  pimished  for  it;  and  accordingly,  as  he  is  or  is  not  free,  or  rather 
as  he  is  more  or  less  free  in  the  choice  he  makes  of  evil,  he  is  more 
or  less  responsible  and  punishable.  The  positivist  criminal  school 
does  not  accept  this  unanimous  reasoning  of  the  jurists,  for  two 
main  reasons.  The  first  is,  that  positivistic  physio-psychology  has 
completely  destroyed  the  belief  in  free  choice  or  moral  liberty,  in 
which,  it  demonstrates,  we  should  recognize  a  pure  illusion  of 
subjective  psychological  observation.  The  second  is,  that  even 
accepting  this  criterion  of  individual  responsibility,  insurmount- 
able theoretical  and  practical  difficulties  are  met  in  applying  it  to 
each  particular  case,  and  the  field  is  left  open  to  a  mass  of  ex- 
ceptions, as  the  result  of  false  deductions  drawn  from  the  new 
and  incontrovertible  data  furnished  by  the  study  of  criminal  man. 

§  198.   Moral  Liberty. 

To  affirm  free  choice  or  normal  liberty  (and  our  opponents, 
to  promote  confusion  with  this  elastic  and  indefinite  word  "hb- 
erty," never  say  free  choice,  although  the  two  terms  are  perfectly 
synonymous)  is  to  assert,  that,  in  the  face  of  the  ceaseless  and  mul- 
tiform pressure  of  the  exterior  environment  and  of  the  conflict 
of  divers  interior  motives,  the  will  of  the  individual  has  the  final 
decision  between  two  opposite  possibilities.  Now,  it  is  not  dis- 
puted that  consciousness  finds  this  the  easiest  and  most  spontane- 
ous answer,  although  there  is  every  day  an  increase  in  the 
number  of  those  who  are,  on  the  contrary,  conscious  of  the  non- 
existence of  the  free  will.^  But  for  those  who  believe  in  it,  there  is 
nothing  to  prove  that  this  moral  conviction  corresponds  to  the 

^  Such  were  the  declarations  of  Moleschott  as  enthusiastically  received  at  the 
First  International  Congress  of  Criminal  Anthropology,  A.  C.  A.  C.  (Rome,  1886), 
p.  320. 


290  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  199 

positive  reality  or  is  an  adequate  representation  of  it.  It  is  shown, 
on  the  contrary,  in  the  first  place,  that  this  feeling  of  freedom  to 
will  one  thing  rather  than  another  is  a  pure  illusion  arising  from 
the  fact  that  we  have  no  consciousness  of  the  immediate  ante- 
cedents, whether  physiological  or  psychic,  of  the  deUberation  which 
precedes  the  will.  To  the  negative  demonstration,  disclosing  the 
origin  of  this  natural  and,  hence,  universal  and  obstinate  illu- 
sion, scientific  physio-psychology,  uniting  external  observation 
through  proofs  and  counter-proofs  with  the  mere  internal  or 
suggestive  observation,  adds  a  positive  demonstration  by  showing 
the  natural  process  in  accordance  with  which  every  voluntary  act 
of  man  is  unrolled.  Let  us  consider  (as  we  must)  the  voluntary 
activity  of  man  as  the  highest  and  most  complex  form  of  animal 
activity.  We  will  fully  recognize  that  from  the  most  humble 
extremity,  namely,  from  a  mere  reaction  of  irritability  in  the 
most  elementary  animal  forms,  the  protozoa,  for  example,  up  to 
the  highest  extremity,  namely,  the  deliberate  act  of  a  human 
being,  there  is  a  continuous  series  of  shades  and  degrees  which 
do  not  admit  of  a  sp)ecial  privilege  in  humanity  by  the  interven- 
tion of  moral  hberty,  which  would  be  a  miraculous  exception  in 
the  entire  order  of  universal  activity.^  Thus,  from  the  weakest 
and  least  perceptible  glimmer  of  intelligence  in  the  simplest  animal, 
we  reach,  by  a  continuous  series  of  shades  and  degrees,  the  high- 
est manifestations  of  himian  genius. 

§  199.   Process  of  Action. 

The  physio-pathological  process  of  every  individual  action  is 
reducible  to  the  following  scheme:  (a)  a  physical  phase  external 
to  the  nervous  center,  which  may  have  its  point  of  departure 
outside  of  the  individual  in  the  external  world  or  in  his  body; 
for  example,  a  vibration  of  the  air  or  ether  which  chances  to  strike 
the  p>eriphery  of  the  body,  or  perhaps  a  movement  produced  in  the 
body  itself,  whether  in  the  stomach,  liver,  or  elsewhere;  (6)  a 
double  physiological  phase,  first  a  centripetal  vibration  in  the 

*  Verioom,  "  Psycho-physiologischen  Protisten-Studien"  (Jena,  1889);  Binet, 
"La  vie  psychique  des  micro-organismes, "  in  "Le  f^tichisme  dans  I'amour"  (Paris, 
1891);  Schneider,  "Der  thierische  Wiile"  (Leipsic,  1880);  "Der  menschliche 
Wille"  (Berlin,  1882);  Sirkowski,  " D^veloppement  de  la  volenti  chez  I'enfant," 
R.  P.  (May,  1885);  Marion,  "Les  mouvements  de  I'enfant;-  premier  progres  de  la 
volont6,"  in  the  "Revue  Scientifique"  (June,  1890);  Bcddwin,  "Le  d^veloppe- 
ment  mental  chez  I'enfant  et  dans  la  race,"  pp.  339  et  seq.  And  to  the  same  effect, 
the  works  on  infant  psychology  by  Perez,  Preyer,  etc. 


§  199]  THE  NEGATION  OF  THE  FREE  WILL  291 

substance  of  the  nerve  whose  peripheral  extremity  is  struck  by  the 
physical  movement  and  which  transmits  to  the  nerve  center 
the  vibration  determined  by  this  movement;  and  secondly,  a  cen- 
trifugal movement  which  follows  the  same  nerve  in  a  contrary  di- 
rection and  transmits  this  same  vibration  from  the  center  to  the 
periphery;  (c)  a  new  physical  phase,  which  is  the  muscular 
movement,  mechanical,  the  external  action,  the  effect  of  this 
centrifugal  nervous  current.  For  example,  a  man  speaks  to  me: 
there  results  an  exterior  movement  of  the  air,  a  centripetal  nerv- 
ous current  from  the  ear  to  the  brain,  a  centrifugal  nervous  cur- 
rent from  the  brain  to  the  arm  and  a  movement  of  the  arm  itself.^ 
This  fundamental  evolutive  process  may  have  two  modaUties: 
either  at  the  instant  the  centripetal  nervous  current  reaches  the 
brain,  we  are  aware  of  it  and  it  then  becomes  conscious,  and 
passes,  as  Sergi  says,   into   the   psychic  phase  ^  and   is   seen  in 

^  In  connection  with  this  psycho-physiological  process,  there  is  the  well-known 
theory  of  "idea-forces"  developed  by  FouUlSe  in  his  " L'evolutionnisme  des  idees 
forces"  (Paris,  1890).  But  either  you  understand  by  this  what  Ardigo,  in  1870,  in 
his  "Psicologia  come  scienza  positiva"  called  "the  psycho-physiological  impulsive 
force  of  ideas,"  when  it  is  reduced  to  a  transformation  of  force,  by  which  the  physi- 
cal movement,  determining  the  sensation,  is  converted  into  a  muscular  movement 
determined  by  the  nervous  system,  or  else  you  add  a  metaphysical  principle  to  this 
positive  and  undeniable  datum,  as  is  the  theory  of  Fouillee,  and  then  the  theory 
turns  into  a  work  of  the  imagination  and  is  only  one  of  the  ordinary  eclectic  move- 
ments between  past  spiritualism  and  present  positive  psychology.  See  Tarozzi, 
" L'evoluzionismo monistico e  leideeforze  secondo  Fouillee,"  in  the  "Rivista  philo- 
sofica  scientifica"  (December,  1890).  For,  treating  of  the  problem  of  free  will  and 
opening  the  discussion  between  the  partisans  of  liberty  and  the  determinists,  Fouil- 
lee, in  "La  liberte  et  le  determinisme,"  2d  edition  (Paris,  1884),  Lib.  Ill,  like 
SicUiani  in  "Le  questioni  contemporanee  e  la  UbertA  morale  nell'  ordine  giuridico" 
(Bologne,  1889),  a  republication  of  "Socialismo  e  Darwinismo"  (Bologne,  1879),  and 
like  all  eclectics  generally,  concluded  that  beyond  a  doubt  freedom  does  not  exist  as 
an  arbitrary  power  of  will,  but  that  it  does  exist  as  "idea-force"  tending  to  its  own 
realization  and,  consequently,  "man  is  not  free  but  becomes  free."  This  is  a  play 
upon  words.  Magical  thoughts,  with  which  those  (and  there  are  many  of  them) 
can  content  themselves  who  recoil  into  philosophies  before  the  precise  and  radical 
solutions,  which  have  no  solid  or  fecund  content.  It  is  incontestable  that  the  idea 
of  moral  or  volitive  liberty,  like  all  other  ideas,  such  as  that  of  their  own  intelligence, 
energy,  or  fortune,  exercises  a  very  efficacious  influence  on  the  conduct  of  men, 
being  one  of  the  motives  which  by  auto-suggestion,  determines  their  course.  And, 
on  the  other  hand,  the  idea  of  non-volitive  liberty  or  psycho-physiological  deter- 
minism exerts  an  influence  which,  no  matter  what  is  said,  is  neither  harmful  nor 
enervating.  But  this  thought  bom  of  psychological  illusion,  explained  hereafter, 
has  really  nothing  in  common  with  the  independence  of  the  human  will  as  far  as 
its  determining  causes  are  concerned.  And  as  in  them  alone  free  will  and  moral 
liberty  are  found,  this  idea  is  inadmissible. 

2  Sergi,  "Sulla  natura  dei  fenomeni  psichici,"  in  "Archivio  italiano  di  antro- 
pologia"  (Florence),  X,  I;  Masilles,  "Les  phenom^nes  moteurs  et  la  volonte" 
R.  S.  29  (March,  1890). 


292  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  200 

sensation,  in  the  feelings,  in  ideas,  in  voluntary  effort;  or  else  it 
does  not  reach  this  psychic  manifestation,  but  it  remains  in  the 
domain  of  unconsciousness  as  a  simple  reflex  act.  In  the  latter 
case,  which  is  the  more  simple,  the  evolutive  process  is,  as  I  have 
said,  composed  of  three  phases,  of  which  one  is  double.  On  the 
contrary,  in  the  case  of  conscious  manifestation,  there  is  a  further 
physical  phase  which  divides  the  double  physiological  base  and 
there  are  then  produced  these  five  stages  of  complex  phenomena: 
external  physical  movement  at  the  beginning — centripetal  phys- 
iological current,  psychic  manifestation,  centrifugal  physiologi- 
cal current,  finally,  external  physical  movement.  If  this  process 
does  not  reach  the  psychic  phase  it  remains  in  the  condition  of  a 
simple  reflex  act,  unconscious  and  involuntary,  where  the  idea 
of  the  free  will  does  not  enter.  If,  on  the  contrary,  it  attains 
to  psychic  manifestation  and  becomes  a  conscious  and  voluntary 
act,  there  is  then  produced,  through  the  illusion  indicated  below, 
the  feeling  of  volitional  Hberty  during  the  psychic  phase,  par- 
ticularly in  special  cases  where  the  dehberation  is  not  instantane- 
ous, hence,  more  distinctly  noticed. 

§  200.    Moral  Liberty  an  Impossibility. 

The  supposition  of  liberty  violates  two  universal  laws  which 
make  it  absolutely  inacceptable.  There  can  be  observed  in  this 
evolutive  cycle  of  an  initial  physical  movement  transforming 
into  a  physiological  movement  and  then  into  a  final  physical 
movement  a  further  instance  of  the  universal  law  of  the  trans- 
formation of  forces,  which,  thanks  principally  to  Mayer  and 
to  Helmholtz,  is  certainly  the  greatest  discovery  of  the  age  in 
natural  philosophy.^  Now,  since  this  law,  the  correlative  of 
Lavoisier's  law  on  the  conservation  of  energy,  cannot  be  con- 
ceded unless  we  admit  that,  in  the  whole  series  of  phenomena 
nothing  is  created,  nothing  is  lost  and  that  there  is  always  the 
same  quantity  of  force,  which  takes  different  asjjects,  it  follows 
that  the  hypothesis  of  free  will  is  inadmissible,  that  is,  of  a  voli- 
tional faculty  which,  intermediate  between  these  transformations, 
would  be  able  to  suppress  or  add  something,  either  by  prevent- 
ing the  ulterior  manifestations  of  individual  activity,  or  by  alter- 
ing the  energy  or  direction  of  this  activity,  effecting  a  real  creation 
or  destruction  of  forces,^    Another  universal  law   which  is  the 

^  Spencer,  "First  Principles";   Balfour  Stewart,  "Conservation  of  Energy." 
*  Attempts  have  been  made  by  Saint- Venant,  Boussinesq,  Delboef,  and  more 

V 


§  200]         THE  NEGATION  OF  THE  FREE  WILL  293 

very  base  of  our  thought,  and  which  has  been  scientifically  proven, 
is  completely  opposed  to  the  hypothesis  of  a  will  free  to  choose 
between  two  contrary  solutions,  namely,  the  law  of  natural  causal- 
ity. In  virtue  of  this  law,  every  effect  being  the  necessary  pro- 
portional and  inevitable  consequence  of  the  entirety  of  causes 
which  produce  it,  of  its  mediate  and  immediate  precedents,  a 
faculty  is  inconceivable  which  could  realize  an  effect  different 
from  that  which  results  naturally  from  its  proi>er  causes.  These 
general  demonstrations  of  the  impossibihty  and  inconceivability 
of  free  will  or  moral  and  volitive  liberty  are  aided  by  the  most 
positive  confirmations  of  fact  based  on  experience.  Physiology 
and  psycho-pathology  ^  concur  in  demonstrating  that  the 
human  will  is  completely  subject  to  natural  influences,  not  only 
of  the  moral  or  psychological  order  but  also  of  the  purely  physical 
order  and  is  far  removed  from  dominating  them  in  a  more  or 
less  absolute  way.  Statistics  in  turn  show  that  individual  wills 
taken  collectively  obey  the  exterior  influences  of  the  physical 
and  social  environment.^  Every  man  has  his  own  physical  and 
psychic  personality  (temperament  and  character)  which  is  es- 
sentially determined  by  physio-psychic  heredity,  and  is  developed 
and  modified  according  to  environment.  But  especially  in  rela- 
tion to  his  affective  life,  this  personality  persists  as  a  more  or 
less  conscious  but  constant  and  inflexible  determinant  of  indi- 
vidual conduct;  that  is  to  say,  that  man  acts  as  he  feels  and  not 
as  he  thinks.  In  the  same  way  there  are,  by  reason  of  special  and 
original  constitution  of  the  nerve  centers,  some  men  of  great 
intelligence  and  others  of  feeble  intellectual  power.  In  like  man- 
ner, there  are  men  endowed  with  great  will  power  and  great 
energy  of  active  resistance,  and  others  whose  will  and  activity 
are  feeble,   intermittent,   or  unstable.     Furthermore,   the  same 

recently  by  Couilhac,  "La  liberie  et  la  conservation  de  I'foergie"  (Paris,  1898), 
and  by  others  to  reconcile  free  will  with  the  conservation  of  energy,  but  Fonregrive 
himself,  in  "Libre  arbitre"  (Paris,  1887),  p.  298,  as  well  as  Groder  and  Fouillee, 
recognize  that  it  is  impossible,  provided  that  one  is  not  ready  to  accept  its  logical 
consequence,  "  the  contingency  of  the  laws  of  nature."  This  was,  however,  accepted 
by  Boutroux  in  "De  la  contingence  des  lois  de  la  nature"  (Paris,  1874).  See  also 
FouillSe,  "La  reaction  contre  la  science;  la  philosophic  de  la  contingence,"  R.  P. 
(January,  1894);  Douriac,  "Pour  la  philosophie  de  la  contingence"  (a  reply  to 
the  above),  in  the  "Annee  philosophique  pour  1895"  (Paris,  1896),  p.  77;  Pillon, 
"Les  lois  de  la  nature,"  R.  P.  (January,  1897). 

1  Mauddey,  "The  Physiology  of  the  Mind";  Herzen,  "La  physiologic  de  la 
volonte"  (Paris,  1874);   Ribot,  "Les  maladies  de  la  volonte"  (Paris,  1888). 

'  Buckle,  "History  of  Civilization  in  England";  Wagner,  "Die  Gesetzmassig- 
keit  in  den  scheinbar  wilkUrlichen  menschlichen  Handlungen." 


294  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  200 

individual  not  only  notes  the  powers  of  his  will  developing  at 
the  same  time  with  those  of  his  body  in  the  same  way  that  this 
occurs  for  every  other  organic  function;  but  at  different  moments, 
on  account  of  external  or  internal  influences,  he  has  invincible 
weaknesses  of  will  or  recrudescences  of  energy  and  volitional 
celerity.  A  high  temperature,  a  hot  wind,  nervous  exhaustion 
following  excessive  labor,  a  period  of  slow  digestion,  and  many 
other  accidental  causes  have  a  power,  which  every  one  has  experi- 
enced, over  the  energy  of  our  will,  and  even  over  our  feelings. 
Every  one  knows  how  health,  or  better  still  an  excellent  digestion 
makes  a  man  benevolent  and  generous.  Poverty  or  chronic  hun- 
ger is  really  a  great  cause  of  physical  and  moral  degeneracy. 
The  will  of  a  man  for  good  or  evil  may  be  modified  by  a  special 
diet.  Coffee  and  tea  excite  the  production  of  ideas;  alcohol  in 
small  quantities  excites  the  will,  yet  if  taken  to  excess  it  leads  to 
an  organic  degeneration  which  follows  the  weakeniag  of  the  psy- 
chic functions  of  intelligence  and  will.  The  same  may  be  said 
of  the  characteristic  action  of  certain  poisons,  narcotics,  and 
the  like.  Finally,  let  us  add  the  recent  eloquent  data  of  hypnotism 
permitting  the  experimental  production  of  a  species  of  psycho- 
logical vivisection  to  such  an  extent  that  it  is  not  possible  longer 
to  deny  that  the  human  will  depends  absolutely  and  continually 
on  the  organic  and,  hence,  psychic  conditions  of  the  individual.^ 
If  this  dependence  of  will  in  relation  to  special  congenital  or  ac- 
quired, permanent  or  transitory,  states  of  the  organism,  be  con- 
ceded (since  it  cannot  be  denied  in  the  clear  cases)  by  what  right 
can  we  deny  it  under  all  other  circumstances  where  it  appears 
less  clearly?  Does  it  follow  that  a  thing  has  less  existence  be- 
cause it  is  less  evident?  There  are  many  other  instances  besides 
these  in  the  physiological  domain.  After  he  had  made  a  study  of 
the  diseases  of  memory  and  personality,  Ribot  collected  and 
arranged  many  observations  of  fact  to  establish  diseases  of  the 
will.  He  studied  its  impairment  as  the  consequence  of  a  lack  or 
excess  of  impulsiveness,  its  anomalies  and  even  its  destruction 
depending,  like  every  other  mental  disease,  on  the  pathological 
conditions  of  the  organism. 

1  MorseUt,  in  "H  magnetismo  animate  e  gli  statiipnotici"  (Turin,  1886),  p.  189, 
said,  "Hypnotism  has  finished  by  destroying  every  prejudice  against  free  will." 


§  201]  THE  NEGATION  OF  THE  FREE  WILL  295 

§  201.    Indivisibility  of  the  Human  Mind. 

The  traditional  philosophy,  with  no  other  means  than  erro- 
neous introspective  observation,  has  spread  the  idea  that  the  human 
mind  is  divisible  into  several  faculties,  —  memory,  intelligence, 
and  will,  —  each  of  which,  as  a  real  self-existent  entity,  has  the 
task  of  producing  at  each  instant  through  its  essence  each  of  our 
recollections,  ideas,  and  vohtional  deliberations.  Hence  it  is 
that  we  hear  the  "will"  spoken  of  as  intervening  to  decide  between 
two  series  of  contrary  motives.  If  we  look  to  positivistic  psy- 
chology for  a  less  fantastic  and  less  naive  notion  of  the  mental 
faculties,  we  find  that  these  so-called  faculties  are  but  syntheses, 
works  of  the  mind  corresponding  to  no  real  entity.  As  the  color 
red  is  the  subjective  synthesis  of  all  the  different  red  tints  which 
we  have  seen  reunited  in  what  they  have  in  common  without 
there  being  objectively  a  self-existent  color  red  (since  there 
exists  only  such  or  such  an  object  of  such  or  such  a  determined 
shade  of  red),  so  memory  and  intelligence  are  but  the  subjective 
abstract  and  general  sum  of  all  the  particular  thoughts  which 
we  have  had  either  in  our  own  existence  or  as  an  inheritance  from 
our  ancestors.  Nor  does  a  memory  exist.  There  are  only  iso- 
lated acts  of  memory  in  the  same  way  that  an  intelligence  does 
not  exist,  there  being  only  isolated  thoughts,  and  so  on.  In  Uke 
manner  the  will  is  but  the  abstract  synthesis  of  all  of  the  voli- 
tional acts  which  we  have  performed.  Hence  the  will  does  not 
exist  as  an  autonomous  being  which  from  time  to  time  issues 
volitional  commands.^  Nor  is  this  all.  The  vohtional  dehbera- 
tion  resulting  from  the  above-mentioned  physio-psychological 
process  of  every  human  act,  is  not  the  cause  of  the  movement; 
it  is  but  the  consciousness  of  this  very  movement  which  is  being 
executed,  not  by  virtue  of  the  volitional  command,  but  merely 
by  the  process  of  reciprocal  transformation  of  physical  and  physio- 
psychological  forces.  This  is  equivalent  to  Ribot's  statement: 
the  "I  will"  takes  note  of  a  situation,  but  does  not  create  it.^ 
So  true  is  this  that  the  final  muscular  movement  may  be  produced 
where  an  electric  current,  applied  to  the  same  efferent  nerve, 
takes  the  place  of  the  volitional  command  and  centrifugal  nerv- 
ous current. 

1  For  the  theories  of  will  in  modem  psychology,  see  Kuelpe  in  his  "Philosophi- 
sche  Studien,"  V.  2,  1888-9,  and  Villa,  "La  psichologia  contemporanea"  (Turin, 
1899),  pp.  418  et  seq. 

*  Ribot,  "Les  maladies  de  la  volonte,"  p.  175. 


296  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  202 

§  202.    No  Free  Will  Because  Will  is  not  an  Entity. 

If  there  is  no  self-existent  will,  but  only  isolated  and  successive 
volitions;  and  if  every  volition  is  simply  the  consciousness  of  the 
physio-psychological  process  about  to  be  completed  (and  the 
diflFerence  between  a  voluntary  and  an  involuntary  act  is  merely 
the  presence  or  absence  of  this  consciousness),  it  is  clear  that  we 
cannot  conceive  of  moral  Hberty  or  free  choice.  Since  free  choice 
would  be  an  inseparable  quality  of  the  human  will,  the  moment 
the  self-existent  subject,  or  wiU,  is  suppressed,  the  quality  attri- 
buted to  it  disappears.  This  positivistic  and  scientific  manner 
of  considering  the  human  will  serves  also  to  refute  the  contra- 
diction of  the  disguised  neo-spirituaUsm  of  which  I  spoke,^ 
and  which  Grote  intruded  into  the  Congress  of  physiological- 
psychology  at  Paris,  but  without  finding  any^  sympathy.  His 
partisans  say  that  as  a  general  thesis  the  function  creates  the 
organ  and  that  in  our  special  field  "crime  creates  the  criminal," 
while  the  inverse  is  not  true.  In  truth,  it  is  impossible  to  con- 
ceive of  a  will  as  an  autonomous  psychic  force,  foreign  and  an- 
terior to  any  organic  element.  The  will  is  conceived  only  as 
the  resultant  and  function  of  an  organ  up>on  which  it  doubtless 
reacts,  since  every  effect  becomes  in  turn  a  cause,  but  the  order 
of  succession  cannot  be  inverted.  There  is  no  organ  without 
an  actual  function.  That  is  an  idea  of  which  we  are  unable  to 
conceive.  It  may  also  be  said  that  we  are  not  even  able  to  con- 
ceive of  a  crime  without  a  criminal  to  commit  it,  while  it  is  pos- 
sible, in  the  biologico-social,  if  not  in  the  legal  sense,  that  there 
should  be  a  criminal  (personal  dispositions  being  restrained  by 
favorable  circumstances)  who  has  never  committed  a  crime.  Cer- 
tainly the  crime  committed  exercises  a  reaction  on  the  criminal 
by  stifling  or  destroying  that  repugnance  to  wrongdoing,  the 
absence  of  which  creates  an  habitual  criminal.  We  know  that 
by  reason  of  a  property  of  the  nervous  system  an  act  once  exe- 
cuted is  more  easily  repeated;  but  to  say  that  an  effect  may 
become  the  cause  of  ulterior  effects  is  quite  another  thing  than 
that  the  effect  precedes  and  determines  the  cause. 

»  G.  S.,  ante. 

*  Grote,  "La  causality  et  la  conservation  de  I'energie  dans  le  domalne  de  I'ao- 
tivite  physique,"  "Congr^  international  de  psychologie  physique"  (Paris,  1890), 
p.  106. 


§§  203,  204]    THE  NEGATION  OF  THE  FREE  WILL         297 

§  203.    Statistics  Prove  That  There  is  No  Free  Will. 

Passing  from  isolated  individuals  to  the  mass  of  individuals, 
statistics  with  equally  convincing  proofs  confirm  the  dependence 
of  the  voluntary  activity  of  man  upon  the  conditions  of  physical 
and  social  environment.  First  of  all,  racial  differences  (which  are 
to  a  people  what  temperament  is  to  an  individual),  controlling 
both  intelligence  and  will,  are  an  initial  manifestation  of  this 
dependence.  Consequently,  the  data  supplied  by  demographic 
and  criminal  statistics,  so  neglected  by  the  defenders  of  the  free 
choice,  have  shown  that  those  human  acts  which  were  beheved  to 
be  the  most  free  morally,  such  as  marriages,  suicides,  crimes,  or 
emigrations,  were,  on  the  contrary,  subject  to  the  influences  of 
environment  and  varied  with  these  influences.  Statistics  have 
thus  given  the  death  blow  to  the  idea  of  a  moral  liberty. 

§  204.   No  Limited  Freedom  of  Will. 

It  is  needless  for  me  to  advert  here  to  the  compromise,  which 
many  statisticians  have  adopted,  according  to  which  the  regular- 
ity and  necessity  of  human  acts  shown  by  statistics  are  true  for 
the  mass  but  not  for  individuals  who  always  preserve  a  relative 
and  limited  freedom  "like  a  bird  in  a  cage."  At  bottom  this 
eclectic  explanation  always  implies  the  strange  consequence  that 
it  is  possible  for  the  sum  of  many  individuals  "relatively  free" 
to  compose  a  mass  "absolutely  determined"  in  its  activity.  In 
my  opinion,  the  observation  which  I  have  made  is  constantly 
decisive,  namely,  that  if  statistics  alone  do  not  suffice  to  prove 
the  non-existence  of  free  choice,  they  incontestably  serve  to 
confirm  it.^  Furthermore,  this  moral  liberty,  if  once  admitted, 
would  make  aU  psychological  and  social  science  impossible  and 
absurd  in  exactly  the  same  way  that  the  supposition  of  free  choice 
in  the  atoms  of  matter  would  destroy  all  physical  and  chemical 
science.  Hence,  the  negation  of  free  choice  instead  of  being,  as 
the  spiritual  schools  assert,  the  source  of  all  evils,  is  fertile  in 
beneficent  effects  in  moral  and  social  life,  since  it  teaches  tolerance 
of  ideas,  inspires  mutual  indulgence  and  counsels,  and  in  pedagogy 
as  well  as  in  the  art  of  government  a  moral  hygiene  which  antici- 
pates evil  sentiments  instead  of  rigorously  repressing  them  after 
they  have  developed.    This  negation  is  the  necessary  condition  of 

*  Ferri,  "Teoria  dell'  ImputabilitA  e  negazione  del  libero  arbitrio"   (Florence, 
1878),  and  in  his  "Saggi." 


298  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  205 

all  sociological  theory  and  practice.  Law  has  no  other  possible 
foundation  than  the  determination  of  the  human  will  by  social 
motives,  the  only  motives  of  which  such  laws  can  make  any  dis- 
position. Indeed,  the  artificial  action  of  juridical  laws  can  be 
efficacious  only  when  not  too  radically  opposed  to  the  more  power- 
ful plastic  and  dynamic  elements  of  the  motives  which  act  nat- 
urally on  every  man.  Since  "La  teoria  dell'  imputabilita  e  la 
negazione  del  libero  arbitrio"  deals  in  detail  with  the  problem  of 
the  free  choice,  it  is  unnecessary  to  dwell  upon  either  at  greater 
length.^  It  was  a  scientific  duty  and  a  necessity  to  start  with 
this  exphcit  negation  of  moral  freedom  and  not  to  avoid  its  dis- 
cussion; since  at  the  bottom  of  every  research  in  social  science 
one  is  confronted  by  this  problem.  If  passed  over  in  silence  it  is 
a  continual  source  of  misconception  and  inadmissible  objection, 
particularly  in  researches  in  criminal  law  so  intimately  connected 
with  human  psychology. 

§  206.   Free  Will  is  Denied  by  Science. 

Leaving  to  time  and  the  natural  expansion  of  positivistic  ideas 
the  task  of  gradually  restricting  the  common  belief  in  free  choice, 
we  must  now  take  up  two  facts  of  great  importance  in  the  direc- 
tion which  the  criminal  sciences  will  take.  In  the  first  place,  ad- 
mitting that  the  negation  of  free  choice  is  open  to  discussion  and 
that  this  question  is  not  to  be  settled  in  a  peremptory  fashion,  how 
can  criminal  science  and  legislation  base  the  whole  edifice  of  human 
responsibility  upon  a  faculty,  so  stoutly  denied  even  by  orthodox 
thinkers  and  disproven  every  day  by  the  most  irrefutable  observa- 
tions of  fact?  There  is  no  objection  to  a  personal  belief  in  the 
existence  of  free  choice,  or  moral  liberty  by  criminologist,  legisla- 
tor, or  judge,  but  can  criminal  law  have  the  force  and  dignity  of 
a  true  science  when  given  a  foundation  so  actively  attacked  on  all 
sides?  The  necessity  of  withdrawing  this  criminal  law  and  the 
social  function  which  it  regulates  from  philosophical  discussions 
should  be  seen.    This  special  plea  which  I  had  already  formulated 

1  Ferri,  "Teoria  dell'  imputabilitA."  It  may  not  be  profitless,  in  view  of  the 
polemic  artifices  of  certain  adversaries,  to  state  once  again,  that  I  maintain  now 
only  the  first  part  of  this  book,  which  I  wrote  when  I  was  only  twenty-two  years 
of  age  and  I  have  republished  it  in  "La  negazione  del  libero  arbitrio  ed  altri  saggi" 
(Turin,  1900).  But  the  second  part  (the  theory  of  imputability),  does  not  any 
longer  correspond  with  my  scientific  ideas,  which  have  been  developed  and  com- 
pleted by  submission  to  the  proofs  of  scientific  observation.  It  contains  only  an 
imperfect  formulation  of  a  theory  which  is  correctly  stated  in  this  Part  III. 


§  206]  THE  NEGATION  OF  THE  FREE  WILL  299 

and  developed  in  1878  is  so  striking  that  it  has  already  impressed 
the  ItaUan  legislator  who  in  announcing  a  desire  to  follow  the 
traditions  of  the  classical  school  has  nevertheless  recognized  that 
the  formula  of  the  liberty  of  election  is  "too  abstract,  too  much 
disputed,  and  too  much  controverted  to  become  the  cornerstone 
of  penal  responsibiUty."  ^  Philosophy  itself,  moreover,  and  aca- 
demic criminal  science  are  making  concessions,  notwithstanding 
that  even  in  scientific  evolution  "natura  non  facit  saltus." 

§  206.    Equivocal  Meanings  of  Moral  Liberty. 

I  have  referred  ^  to  the  eclectics  in  France  who  now  impHc- 
itly  declare  that  "to  take  free  choice  as  the  basis  of  responsibility 
is  to  enter  theoretically  and  practically  upon  a  road  without  issue 
by  relying  upon  an  element  whose  presence  is  most  frequently  a 
mystery  and  escapes  all  the  determinations  and  measures  of  which 
life  has  need. "  ^  Notwithstanding  this  declaration,  which  ex- 
pressly excludes  free  choice,  the  equivocation  remains,  since  where 
they  still  speak  of  "liberty"  the  sense  is  vague  and  they  do  no 
more  than  displace  this  mysterious  point  of  psychic  being,  where 
consciousness  discloses  to  us  the  unity  "individualized"  and 
integrated  by  the  word  "ego"  itself.*  This  may  suffice  as  a 
play  upon  words  but  it  clearly  fails  to  solve  the  problem  which 
admits  of  no  middle  term  between  free  choice  and  determinism. 
Or  again,  "liberty"  is  understood  to  be  simply  the  physical  hberty 
which  consists  in  the  absence  of  obstacles  to  the  development  of 
personal  tendencies  and  activity  in  so  far  as  they  are  developed 
by  the  constitution  of  the  individual  and  environment.  On  this 
point  we  are  perfectly  in  accord,  but  then  we  have  reached  full 
physical  and  moral  determinism.  In  this  sense  the  waters  of  a 
river  are  free  too  where  no  dam  prevents  them  from  flowing  ac- 
cording to  the  determining  law  of  gravity.  It  is  for  this  reason,  no 
matter  what  certain  adversaries  may  say  in  mistaking  the  differ- 
ent significations  of  the  word  "Hberty,"  that  the  negation  of  moral 

^  "Relazione  ministeriale  sul  progetto  di  codice  penale"  (Rome,  1887),  I, 
163.  '  G.,  ante. 

'  Moriand,  "La  question  de  la  liberte  et  de  la  conduite  humaine"  (Paris,  1897), 
p.  194;  Cliche,  "  De  la  possibilite  de  I'ecole  classique  d'organiser  la  repression  penale 
en  dehors  du  libre  arbitre" (Grenoble,  1897);  SaleUles,  "Individualization  of  Pun- 
ishment" (Little,  Brown  &  Co.,  1911),  p.  140.  Such  a  rabid  spiritualist  as  Bru- 
netiere,  R.  D.  M.  (1st  November,  1891),  holds  with  a  concealed  spiritualist  like 
Tarde,  that  the  ba.sis  of  legal  responsibility  does  not  require  free  will.  Another 
spiritualist,  Proal,  took  him  to  account  for  this,  "Le  crime  et  la  peine,"  p.  xxx. 

*  SoZeiZZes,"  Individualization  of  Punishment"  (Little,  Brown  &  Co.,  1911), p.  140. 


300  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  206 

freedom  which  does  not  exclude  either  the  physical  liberty  of 
movement  nor  the  Uberty  of  the  development  of  each  one's  heredi- 
tary personality,  in  a  given  environment,  excludes  none  of  the 
Uberties  (in  the  physical  order)  of  the  citizen,  such  as  personal 
freedom  to  come  and  go,  civil,  religious,  or  poUtical  liberty.^ 
So  true  is  this  that  only  in  epochs  and  by  men  metaphysically 
committed  and  intolerant  of  discussion  of  the  moral  freedom 
of  the  human  will,  were  civil,  rehgious,  and  political  liberty  out- 
rageously denied  and  trampled  under  foot.  Or,  again,  by  this 
equivocal  "liberty"  there  is  understood  a  kind  of  attenuated 
free  choice,  diluted,  shorn  of  its  most  palpable  contradictions  by 
actual  data,  and  the  same  error  arises,  and  through  excess  with- 
out the  advantages  of  a  candid  and  open  determinism,  all  the 
inconveniences  of  the  old  free  choice  of  the  metaphysicians  result. 
There  is  nothing  really  logical  and  conceivable  except  absolute 
freedom  of  choice  and  absolute  determinism.  Every  intermedi- 
ate conception  is  unsound,  and  whatever  satisfaction  it  may  give 
to  the  instinct  of  utiUty  in  personal  eclecticism,  which,  among 
tried  people,  lovers  of  tranquil  life  and  undisturbed  surroundings, 
is  one  of  the  most  common  forms  of  mental  timidity  (when  it  is 
not  a  means  of  picking  one's  road)  and  in  any  event,  only  raises 
difficulties  at  every  step.^  If  finally  we  understand '  this  vague 
and  equivocal  word  "liberty"  as  the  internal  energy  which  every 

1  This  is  exactly  the  sense  in  which  Ardigo  says,  in  "Sociologia"  ("Opere," 
Padua,  1886,  FV,  35),  "Liberty  consists  in  that  wherein  the  coordinate  part  of 
society  can  function,  following  its  natural  disposition,  which  fits  it  to  function." 

*  Three  writers,  among  many,  agree  upon  this,  although  taking  points  of  view 
diametrically  opposed.  They  are  Fioretti,  "Per  il  determinismo,"  in  the  "Rivista 
di  giurisprudenza"  (Turin,  1885),  p.  I;  Innamorati,  "I  nuovi  orizzonti  del  diritto 
penale  e  I'antica  scuola  italiana"  (Perouse,  1887),  p.  196;  DeBade,  "Une  question 
touchant  le  droit  de  pimir,"  in  the  "Revue  neo-scholastique"  (February,  1897). 
Among  numberless  essays  of  eclectic  theory,  I  will  only  mention  "  La  Uberte  morale" 
(Paris,  1888),  by  Joyau,  where  it  is  said  that  freedom  does  not  mean  free  wall  in 
the  spiritualistic  sense,  but  only  "the  power  to  determine  to  do  right  willingly. 
To  do  evil  voluntarily  seems  to  me  impossible";  p.  viii.  This  is  the  old  Socratic 
idea  that  man  does  wrong  only  through  ignorance  or  error,  believing  that  he  is 
doing  right;  but  this  belief  is  without  scientific  base,  unless  it  means  that  the  de- 
linquent intends  his  own  good.  For,  we  need  only  to  recall  what  criminal  psychol- 
ogy teaches  that  certain  delinquent  or  insane  (in  case  of  diseases  of  the  will  with 
minds  unimpaired),  either  habitual  or  congenital,  know  that  they  are  doing  wTong, 
and  yet  commit  the  misdeed,  through  lack  of  repugnance  to  it.  For  the  eclectic 
sense  (of  relative  liberty  "as  a  sjTithesis  of  the  ideas  of  freedom  and  necessity"), 
see  also  Navill^,  "Le  fibre  arbitre"  2d  edition  (Paris,  1898),'  and  Torantino,  "Sag- 
gio  sulla  volimtA"  (Naples,  1897). 

'  Ideas  recently  sustained  by  Van  Celher,  "Die  strafrechtliche  Zurechnungs- 
f&higkeit"  in  the  "Deutsche  Juristenzeitung"  (1897),  p.  2. 


§  207]  THE  NEGATION  OF  THE  FREE  Wn.L  301 

man  possesses  to  develop  in  an  entirely  individual  way,  peculiar 
to  himself  and  different  from  others  since  each  has  a  special  physio- 
psychological  temperament,  which  causes  him  to  react  in  a  special 
manner  to  the  different  environmental  influences,  then  we  are  also 
in  accord.  But  from  that  position  it  is  sought  to  make  argument 
to  the  effect  that  determinism  reduces  man  to  the  condition  of  an 
automaton  and  all  nature,  physical  and  moral,  to  a  mere  fatalistic 
mechanism.  Therein  is  an  error:  for  on  the  contrary,  it  is  be- 
cause all  human  action  is  the  necessary  and  inevitable  effect  of 
determining  causes  that  each  man  has  his  own  personality  and 
physiognomy,  both  moral  and  physical,  by  which  he  is  distinguish- 
able from  every  other  being  and  by  which,  also,  the  same  external 
causes  being  present,  he  responds  in  a  manner  peculiar  to  him- 
self, different  from  that  of  other  men  and  differing  also  in  himself 
with  varying  conditions  of  time  and  place,  since  the  condition  of 
the  organism  changes.  For  this  reason  every  act  performed  by 
a  man  is  his  own  act  as  the  index  and  necessary  effect  of  his 
organism  and  personality.  The  first  germ  of  imputability  in  the 
physical  sense  is  that  whereby  we  begin  to  impute  to  every  man 
and  to  put  to  his  account  the  acts  which  he  has  physically  done. 

§  207.   Examples  of  Eqmvocal  Meaning  of  Liberty. 

Let  us  take  some  examples.  Let  us  suppose  that  we  have 
two  sewing-machines  of  a  given  system.  Once  put  in  motion 
they  respond  and  react  constantly  in  furnishing  equal  work  to 
sew  the  material  in  a  special  way.  The  external  motive  cause 
constantly  obtains  an  equal  reaction  from  these  machines  in 
every  circumstance  of  time  and  place.  If,  however,  we  take  two 
plants  of  the  same  species  and  variety  and  put  them  in  the  same 
field  under  the  same  temperature  and  with  the  same  nourishment, 
we  do  not  get  identical  reactions.  One  grows  straight,  the  other 
crooked;  one  grows  vigorously,  the  other  withers.  Now  the 
reason  of  this  is  that  with  inorganic  machines  the  ultimate  reac- 
tion depends  solely,  or  at  least  principally,  upon  the  exterior 
causes,  for  each,  as  Spencer  remarks,  has  its  own  physiognomy  and 
constitution  even  when  the  construction  is  identical;  ^  whereas 
among  organic  beings  of  the  vegetable  order,  the  action  of  inter- 

^  Spencer,  "Essays,"  III,  272.  In  "La  b§te  humaine,"  Zola,  who,  for  the  first 
time,  introduced  the  bom-criminal  (in  place  of  the  insane  criminal  or  one  by  pas- 
sion) into  art,  says  that  every  locomotive  engineer  learns  through  experience  the 
"mechanical  temperament"  of  his  engine. 


S02  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  207 

nal  and  physiological  causes  is  combined  with  the  action  of  exter- 
nal causes  and  therefore  these  two  series  of  elements  combining 
in  different  ways  may,  and  do,  give  different  reactions,  even  when 
the  exterior  causes  remain  the  same.  To  ascend  from  the  vegeta- 
ble to  the  animal  world  and  to  take  for  examples  two  dogs  of  the 
same  breed  and  the  same  age,  we  see  that  stimulated  by  the  same 
exterior  cause,  such  as  the  sight  of  a  man,  they  respond  in  very 
different  ways:  one  runs  away  or  barks,  the  other  caresses  or  bites. 
The  same  dog  at  different  times  responds  or  reacts  differently 
to  the  same  exterior  cause.  Here  the  differences  of  ultimate  reac- 
tion may  be  even  greater  than  in  the  preceding  case.  If,  in  the 
case  of  the  machines,  there  are  only  exterior  causes,  and  in  the 
case  of  vegetable  organisms  external  causes  and  internal  physio- 
logical causes,  there  are  in  the  case  of  animal  organisms  both  of 
these  causes  and  internal  psychological  causes  in  addition.  It  is, 
therefore,  natural  that  with  increase  in  the  series  of  factors,  the 
number  of  their  i>ossible  combinations  should  also  increase  and 
consequently  that  the  ultimate  reactions  for  the  same  external 
cause  would  be  more  varied.  In  leaving  the  vegetable  kingdom, 
and  ascending  in  the  zoological  scale,  the  differences  are  multiplied 
for  different  individuals  and  for  different  moments  in  the  life  of  the 
same  individual,  because  the  physiological  and  psychological 
elements  are  more  developed.  Hence,  if  we  take  two  men  in  the 
same  moment  or  the  same  man  at  different  moments  we  shall  find 
that  there  are  very  great  differences  in  his  reactions  to  the  same 
exterior  cause;  not  that  there  is  innate  in  man  some  new  element 
of  moral  freedom,  but  simply  because  the  psychic  factors  of  action 
are  more  developed  and  complicated.  Every  being,  and  hence 
every  man,  has  a  peculiar  and  sp>ecial  manner  of  responding  to 
exterior  influences.  It  has  a  necessary  dependence  for  each  mo- 
ment of  life  upon  the  exterior  conditions  combined  with  the  physio- 
psychological  state  of  the  organism.  To  give  precision  to  this 
thought  by  an  apparently  unusual  phrase,  it  could  be  said  that 
man  is  a  machine  but  he  is  not  made  hke  a  machine.  He  is  a 
machine  in  the  same  sense  that  in  his  acts  he  supphes  nothing 
more  than  what  he  receives  from  his  physical  and  moral  environ- 
ment. Like  every  other  living  being,  he  is  only  a  machine  subject 
to  the  universal  law  of  causation  by  virtue  of  which,  at  a  given 
moment,  in  a  given  combination  of  physiological  and  psychic 
causes,  he  must  react  in  a  given  determinate  manner.  But  he  is 
not  made  like  a  machine.  He  is  not  an  inorganic  mechanism 
V 


§§  208,  209]    THE  NEGATION  OF  THE  FREE  WILL         303 

for  the  very  reason  that  he  is  a  living  organism  with  his  own 
special  manner  of  responding  to  external  causes.  His  response  is 
in  each  case  necessarily  determined  by  the  physical  and  physio- 
psychological  causes  which  have  gone  before.  The  response  is 
variable,  and  hence  often  impossible  to  foresee  in  different  individ- 
uals or  in  different  moments  because  of  the  various  combinations 
of  these  manifold  determining  causes.^ 

§  208.   Denial  of  Free  Will  is  not  Fatalistic. 

It  is,  therefore,  a  mere  illusion  to  think  that  the  negation  of 
free  choice  makes  of  man  an  automaton,  subject  to  Moslem  fatal- 
ism. So  far  are  men  from  being  automatons  that  each  has  his 
special  manner  of  reaction  against  the  exterior  environment. 
Such  variety  does  not  exclude  but  demands  physical  and  moral 
determinism,  since  otherwise,  if  man  possessed  a  freedom  which 
made  him  more  or  less  independent  of  determining  causes,  one 
could  no  longer  understand  personality  itseff  as  the  permanent  type 
of  individual  character.  i 

I 
§  209.   Limited  Moral  Freedom ;  Conclusion. 

To  return  to  the  eclectic  hypothesis  of  limited  moral  freedom, 
it  is  not  easy  to  be  content  with  a  theory  which  is  so  strangely 
refuted  in  our  day  and  according  to  which  "man  is  subject  to 
general  laws;  but  within  the  limits  of  these  laws,  which  are  the 
conditions  of  universal  life,  he  retains  a  relative  liberty  suflScient 
to  keep  intact  the  principle  of  individual  responsibility."  ^  Seek 
as  we  may  for  what  basis  of  solidity  there  may  be  under  the  verbal 
appearance  of  this  gratuitous  declaration,  the  question  arises  at 

1  This  positive  manner  of  considering  the  physio-psychological  organism  of 
man  lends  itself  to  the  solution  of  other  sociological  problems:  for  example,  eight 
hours'  labor.  If  man  were  an  inorganic  mechanism,  it  is  certain  that  by  working 
twelve  hours  a  day  he  would  produce  twice  as  much  as  by  six  hours'  work.  But, 
although  this  is  true  for  all  inorganic  machines  (and  yet  machines  have  need  of 
repose),  it  is  not  true  for  man,  who  is  an  organicorphysio-psychological  working  ma- 
chine. A  workingman  who  works  fourteen  hours  per  diem  does  not  produce  twice 
as  much  as  he  who  works  seven  hours,  because  the  last  hours  are  poisoned  by  mus- 
cular and  nervous  fatigue.  This  accounts  for  the  fact  that  most  accidents  occur 
during  the  latter  period.  Shorter  working  hours,  which  have  been  tried  in  some 
industrial  establishments,  prove  that  an  eight-hour  day  (because  of  the  decrease 
in  fatigue  and  the  psychic  encouragement  of  a  short  day)  does  not  diminish  the 
quantity  (not  to  speak  of  the  quality)  of  the  product  to  a  degree  harmful  to  the 
profit  of  the  capitalist.    See  Ferri,  "Socialismo  e  scienza  politica." 

^  Prius,  "Criminalite  et  repression,"  p.  39,  and  "Science  p^nale  et  droit  posi- 
tif"  (Brussels,  1899),  p.  16ie. 


304  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  209 

once  what  and  where  are  the  Umits  of  general  laws.  If  a  law,  the 
condition  of  universal  life,  merits  the  name,  such  as  the  law  of 
gravity,  or  the  law  of  causation,  there  are  no  Umits  to  its  appli- 
cation and  it  admits  only  of  apparent  exceptions.  A  gap  between 
one  law  and  another  in  which  this  last  remnant  of  relative  liberty 
might  take  refuge  cannot  be  admitted.  Moreover,  admitting 
that  the  moral  freedom  of  man  is  Umited,  there  arises  at  once 
this  problem  for  which  there  is  no  solution.  In  human  activity, 
which  is  a  continuous  total,  does  determinism  pass  into  moral 
liberty  by  a  sudden  leap  or  by  a  gradation  of  indistinct  shades.' 
This  is  a  decided  difficulty.  Since  it  is  a  principle  of  these  crimi- 
nologists that  imputabiUty  exists  and  expands  in  proportion  to 
the  moral  freedom  of  human  activity,  it  is  necessary  as  soon  as 
possible  to  separate  the  part  imposed  by  necessity,  and,  hence,  not 
imputable  from  the  part  still  supposed  to  be  morally  free  and 
imputable.  Again,  all  of  the  argimaents  of  fact  produced  against 
absolute  free  choice  apply  with  equal  force  to  limited  free  choice 
for  the  logical  and  experimental  objections  which  are  vaUd  against 
a  meter  of  free  choice  are  also  vaUd  against  a  centimeter  of  it. 
Then  we  are  face  to  face  with  another  insurmountable  difficulty: 
why  is  this  moral  Uberty  of  man  limited  and  suppressed  by  exter- 
nal and  internal  circumstances  up  to  a  certain  point  and  not 
beyond  it?  Given  the  influence  of  climate  and  race  on  the 
criminality  of  a  people  and  the  influence  of  annual  climate, 
agricultural  production,  and  density  of  population,  it  follows  as  a 
necessary  consequence  that  the  judge,  in  harmony  with  the  theory 
that  he  must  grade  ofiFenses  according  to  degrees  of  moral  Uberty, 
should  include  in  his  calculation  a  number  of  elements  and  factors 
external  to  the  individual.  It  would  be  necessary  for  him  to 
consider  the  degree  of  latitude  where  the  misdeed  was  committed 
and  the  reading  of  the  thermometer;  he  would  have  to  measure  the 
cubic  feet  of  fresh  air  at  the  disposal  of  the  offender,  perhaps 
forced  to  vegetate  in  a  squalid  hovel  and  curl  up  on  a  miserable 
pallet  crowded  with  adults  and  children;  he  would  have  to  estimate 
that  part  of  the  criminal  impulsion  traceable  to  the  lamentable 
conditions  of  the  family  and  social  environment;  finally,  it 
would  be  necessary  for  him  to  risk  himself  in  a  chimerical  enter- 
prise of  physical,  physiological-psychic,  and  social  evolution 
entirely    beyond    human    ability.^     If    you    take   into   account 

'  So  said  FouiUie,  in  "La  science  sociale  contemporaine "  p.  305,  who,  however, 
ia  an  eclectic.    This  shows  the  inanity  of  the  work  of  certain  eclectics,  for  example 


§  210]  THE  NEGATION  OF  THE  FREE  WILL  305 

age,  sleep,  the  affliction  of  the  deaf  mute,  intoxication,  why  should 
you  refuse  to  calculate  also  the  degree  of  instruction  and  of  edu- 
cation, the  profession,  civil  state,  domicile,  economic  situation, 
and  sanguine  or  nervous  temperament  of  the  accused?  Are  these 
four  or  five  recognized  circumstances,  which  are  apparent  the 
only  ones  that  may  influence  moral  freedom  and  hence  moral 
culpability?  If  all  the  circumstances  are  taken  into  considera- 
tion, what  becomes  of  the  residuum  of  moral  freedom  which  is 
considered  indispensable  as  the  legal  basis  of  human  responsibility? 
And  with  this  traditional  system  of  a  more  or  less  complete  moral 
imputability,  how  can  there  be  a  single  judge  who  is  not  lost  in 
this  hopeless  labyrinth?  Familiarity  with  the  weak  avowals  to 
which  the  eclectic  partisans  of  "relative  hberty"  are  reduced 
suffices  to  show  it  is  not  tenable. 

§  210.    Limited  Moral  Freedom  Impotent  to  Sustain  Criminal  Law. 

Prius  maintains  that  between  men  relatively  normal  (to  whom 
normal  repression  should  be  apphed)  and  men  absolutely  abnor- 
mal (as  shown  by  pathology)  "there  is  an  intermediate  zone  of 
degenerates,  of  incomplete  neurasthenic,  ill-balanced  beings  for 
whom  the  problem  of  responsibility  cannot  be  stated  and  if 
stated  cannot  be  solved."  ^  It  is  evident  that  such  language  pro- 
claims the  theoretical  and  practical  impotence  of  penal  justice 
founded  on  this  archaic  remnant  of  relative  liberty  or  mutilated 
free  choice.  And  this  is  not  the  worst  of  it;  for  the  reply  may  be 
made:  "Very  well,  we  will  take  into  consideration  these  newly 
discovered  factors  of  crime  to  the  extent  that  our  knowledge 
permits.  You  make  our  task  more  difficult,  but  you  do  not  prove 
its  absurdity."  Herein  lurks  a  real  and  serious  social  peril,  an 
unavoidable  consequence  of  the  doctrine  of  limited  or  relative 
liberty,  for  it  follows,  from  this  doctrine,  on  the  one  hand,  that 
the  least  dangerous  are  nevertheless  the  most  severely  punished, 
since  in  their  slight  offense  there  is  no  examination  into  their 
psycho-pathological  conditions,  which,  on  the  contrary,  are  gone 
into  where  there  are  more  serious  offenses  committed  by  more 

of  Alimena,  who,  publishing  in  the  year  of  grace  1889,  three  large  volumes  on 
"the  limits  and  modifications  of  imputability,"  wastes  his  time  examining  the  tra- 
ditional circumstances,  capable  of  modifying  and  measuring  human  responsibility 
which  our  grandfathers  have  catalogued  in  their  works  on  criminal  science  as  if 
criminal  psycho-pathology  and  sociology  have  taught  us  nothing  new  on  the  gene- 
sis of  human  acts. 

^  Prius,  "Science  penale  et  droit  positif,"  No.  275,  p.  166. 


806  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  210 

abnormal  and  more  dangerous  evildoers.  On  the  other  hand,  the 
latter  are,  as  we  see  every  day,  illogically  acquitted  or  given 
greatly  reduced  punishment  in  connection  with  dangerous  mani- 
festations of  atavic  criminality.  They  have  so  upset  the  penal 
justice  of  our  times  that  the  necessity  of  applying  a  remedy  is 
not  always  obvious.^  There  are  only  two  possible  means  of 
remedying  it:  either  a  complete  return  to  the  former  absolute 
theories  of  free  choice,  or  a  candid  and  complete  acceptance  of 
all  the  results  and  conclusions  of  the  positivistic  sciences.  With 
the  system  of  hmited  free  choice  it  is  impossible,  as  is  constantly 
more  clearly  seen,  to  avoid  social  and  individual  dangers  and 
absurdities.  The  very  evident  reason  is  that  the  principle  that  the 
moral  responsibility  of  man  expands  and  shrinks  in  proportion  to 
an  elastic  free  choice,  is  a  recognition,  on  the  one  hand,  of  an 
undisputed  freedom  of  choice  among  the  authors  of  slight  crimes 
(who  are  nevertheless  worthy  of  comparison),  and,  on  the  other 
hand,  an  admission  of  it  only  in  an  extremely  attenuated  form  in 
the  most  inhuman  criminals.  Herein  lies  the  danger  and  scandal 
of  the  acquittals  by  which  the  latter  profit.  Counsel  for  the  defense 
will  always  find  a  quantity  of  personal,  physical,  or  social  cir- 
cumstances to  destroy  or  diminish  the  moral  Hberty  of  any  man 
charged  with  an  unusual  and  savage  crime,  and  which,  exactly 
as  the  classicist,  Rolin,  says,  "shows  more  and  more  how  uncer- 
tain is  his  responsibility."  ^  They  have  gone  so  far  as  to  make 
this  absurdity,  danger,  and  iniquity  a  theory  and  general  rule. 
That  has  been  done  by  the  Review  which  is  the  organ  of  the  classi- 
cal jurisprudence  and  by  its  director  Luccini,  who,  wath  the  "Sim- 
plistes  du  droit  penal,"  translated  into  French  if  you  please,  has 
undertaken  a  systematic  refutation  of  criminal  sociology.  This 
Review  has  maintained  the  thesis  that  the  new  penal  code  should 
establish  a  mitigation  of  penalties  and  even  (conformably  with 
the  opinion  of  certain  German  jurists)  the  complete  abolition  of 
all  perpetual  punishment  ^  for  all  delicts  (therefore  even  for  the 
atavic  forms  of  criminality).  On  this  account,  Garofalo  ^  replied 
in  the  name  of  the  positivist  school  by  contesting  this  tendency 
to  an  indefinite  mitigation  which  really  threatens  to  go  so  far  as 
the  complete  acquittal  of  the  most  inhuman  criminals,  it  being 

1  Rolin,  "La  pena  di  morte"  (Lucca,  1871). 
«  Ibid.,  pp.  35,  36.  3  R.  P.  May,  1882. 

*  Garofalo,  "I  pericoli  sociali  di  alcune  teorie  giuridiche,"  in  the  "Archivo  di 
psychologia  e  scienza  penali,"  III,  4. 


§211]  THE  NEGATION  OF  THE  FREE  WILL  307 

understood  that  forgetting  the  honest  victim,  they  generalize 
on  the  argument  of  Holtzendorff  who,  replying  upon  the  fact  that 
the  value  of  personal  Hberty  has  increased,  would  punish  the 
assassin  with  only  a  temporary  penalty.^  They  forget,  as  Bar- 
zilai  well  said  (also  in  the  name  of  the  positivist  school),  that  the 
liberty  and  lives  of  the  victims  have  also  increased  in  value.'' 
Following  the  same  road,  they  propose  to  concede  to  the  jury 
the  legal  faculty  of  allowing  extenuating  circumstances.^ 

§  211.   Theory  of  Limited  Moral  Freedom  in  Practical  Jurisprudence. 

If  we  pass  from  the  field  of  science  and  legislation  to  that  of 
practical  jurisprudence,  we  find  that  in  trifling  occasional  dehcts, 
where  less  notice  is  taken  of  these  physio-psychological  anomalies, 
necessarily  more  obvious  in  the  dangerous  criminals,  the  ancient 
severity  of  penal  justice  exercises  all  the  absolutism  of  the  old 
theories  of  responsibihty.  Thus  we  observe  the  present  spirit  of 
penal  justice  suffering  from  a  double  error  and  a  twofold  de- 
moralization, since  by  a  misunderstood  apphcation  of  the  new 
scientific  data,  it  offers  the  most  improvident  impunity  or  indul- 
gence to  the  more  dangerous  criminals,  keeping  its  severities,  as 
disproportionate  as  they  are  harmful,  for  the  less  dangerous,  that 
is,  for  occasional  criminals.  Public  opinion,  ill-informed  in  these 
matters  and  always  hostile  to  innovation,  at  the  beginning  im- 
puted to  the  new  criminal  school  a  tendency  towards  the  impun- 
ity of  all  criminals  (an  imputation  made  against  the  school  of 
Beccaria  a  century  ago).  On  the  contrary,  the  tendency  to  an  ex- 
clusive exaggerated  and  ever-increasing  clemency  for  the  more 
formidable  criminals  is  the  actual  result  of  classical  penal  law, 
mixed  with  a  few  of  the  most  obvious  results  of  the  physio-psy- 
chological sciences. 

1  Holtzendoff,  "Das  Moral  iind  Todesstrafe"  (Berlin,  1875),  p.  225. 

^  BarzUoi,  "La  recidiva  ed  il  metodo  sperimentale,"  R.  C.  (1883),  p.  462. 

'  Bozerian,  "Projet  de  loi  sur  les  circonstances  ires  attenuantes,"  presented 
before  the  French  Senate,  April  4th,  1885,  "Bulletin  de  la  societe  des  prisons" 
(1885),  p.  95;  Grandperret,  "Les  circonstances  tres  attenuantes,"  id.  (1886), 
p.  508;  Bertkear,  "Reformes  pratiques"  (Paris,  1886),  p.  46,  who  combats  the  prop- 
osition; Hugues,  "  La  cour  d'assises  et  le  nouveau  code  d'instruction  criminal"  in 
"France  judiciaire"  (1887),  No.  7;  Leloir,  "De  la  frequence  des  acquittements  et 
du  projet  de  loi  sur  les  circonstances  tres  attenuantes,"  id.  (1887),  p.  65,  and  1888, 
p.  46,  who  is  also  opposed  to  the  project. 


CHAPTER  n 

THE   PROBLEM   OF   PENAL   JUSTICE   WITH   THE    DENIAL   OP 

FREE    WILL 

Natural  defensive  reaction.  Present  reaction.  Ethnical  character  of  retributive 
justice  eliminated  from  the  defensive  function.  Freedom  of  this  function 
from  criteria  of  liberty  and  moral  defects. 

§  212.   Penal  Law  Denying  Moral  Liberty. 

Aside  even  from  the  palpable  refutations  by  physio-psychology 
of  the  presupposition  of  free  choice  or  moral  hberty,  we  have 
seen  how  fully  the  theoretical  and  practical  impossibility  of 
resting  man's  responsibiUty  for  his  crimes  upon  free  choice,  either 
absolute  or  relative,  is  proven.  But  then,  if  man  commits  mis- 
deeds not  by  the  free  choice  of  his  will,  but  by  the  fatal  tyranny 
of  his  abnormal  organism  and  his  environment,  the  question 
arises,  how  can  he  be  punished  and  made  responsible  for  faults 
which  are  not  his.'  Open  the  prisons  and  close  the  courts,  be- 
cause partisans  of  the  positivist  school  deny  and  exclude  the 
free  will!  If  you  cannot  decide  to  do  this,  since  the  thing  is  too 
absurd  and  perilous,  you  can  no  longer  talk  of  penal  law  and 
punitive  justice  except  by  formal  contradiction  of  terms.  Such 
is  the  ordinary  objection,  as  spontaneous  as  it  is  ill-founded.  It 
is  made  by  all  those  who  beUeve  themselves  able  to  solve  such 
problems  off-hand  by  following  the  first  impressions  of  sentiment 
and  of  all  those  who  are  unable  to  free  themselves  from  the  nat- 
ural and  deceptive  tendency  whereby,  as  Bain  observes,  "every 
novel  manner  of  conceiving  a  thing  or  a  problem  is  taken  as  its 
negation."  ^ 

But  such  is  the  true  problem,  the  fundamental  problem 
which  presents  itself  to  the  new  science  of  crimes  and  punish- 
ments. It  would  seem  that  it  is  incapable  of  solution  or  ca- 
pable of  it  only  by  syllogistic  subtleties.  Yet  it  has  a  clean  and 
accurate  solution  in  the  mere  investigation  of  social  facts  which 
always  have  sought  and  always  will  seek  their  genesis  and  justi- 
fication in  the  natural  conditions  of  human  life  and  not  in  the 

'  Bain,  "The  Mind  and  Body." 
308 


§213]  THE  PROBLEM  OF  PENAL  JUSTICE  309 

metaphysical  theories  of  jurists.  Before  taking  up  the  solution 
of  this  problem  by  the  mere  light  of  social  facts  we  encounter  a 
preliminary  question  as  to  method  which  will  seem  to  put  us  on 
the  road.  The  observation  is  this:  The  point  of  departure  and 
pivot  of  this  problem  being  the  negation  or  exclusion  of  all  idea  of 
moral  liberty  as  the  condition  or  measure  of  responsibility,  it 
follows  that  to  be  logical  and  avoid  difficulties  and  contradictions 
exactly  similar  to  those  from  which  we  are  endeavoring  to  escape, 
the  problem  must  be  transported  to  a  field  entirely  different  from 
that  wherein  it  has  heretofore  remained.  Social  theories  are 
not  like  those  American  houses  which  may  be  moved  from  one 
place  to  another  and  rest  upon  their  new  foundations  just  as 
firmly  as  upon  the  old.  Penal  justice  is  founded  either  upon 
the  idea  of  free  will  (whether  absolute  or  relative,  explicit  or 
implicit,  makes  little  difference)  and  hence  may  continue  to 
rest  upon  the  ancient  criteria  open  at  most  to  a  few  partial 
superficial  reforms;  or  else  penal  justice  is  founded  upon  the 
natural  determinism  of  human  acts  and  consequently  upon  the 
data  of  anthropology  and  criminal  sociology,  therefore  requiring 
radically  different  criteria  to  be  sought  in  corresponding  institu- 
tions and  judicial  and  administrative  mechanism.  The  eclectic 
tendency,  on  the  contrary,  through  its  stubborn  tenacity,  would 
keep  the  foundation  without  changing  anything  and  content 
itself  with  verbal  innovations.  Nevertheless,  the  point  of  arrival 
must  completely  change  where  the  point  of  departure  is  so  com- 
pletely displaced.  This  idea  (elsewhere  indicated)  ^  I  propose 
to  develop  if  only  to  satisfy  the  preliminary  question. 

§  213.   Basis  of  Responsibility. 

There  are  two  orders  of  facts  necessary  and  sufficient  to  define 
the  problem  of  responsibility  according  to  the  method  of  the 
positive  school,  that  is,  of  the  conditions,  where  the  individual  is 
passive  to  measures  of  preservation  and  defense  which  can  and 

^  "II  diritto  di  punire  come  funzione  sociale,"  in  "Archivio  di  psichologia  e 
scienza  penale"  (1882),  Vol.  Ill,  Fasc.  I.  Hamon  is  wrong,  therefore,  in  his 
" Determinisme  et  responsabilite,"  p.  xi,  when  he  says,  "in  relation  to  responsi- 
bility and  penology  no  one  of  the  partisans  and  followers  of  the  school  of  Lombroso 
has  gone  to  the  logical  conclusion  of  the  doctrine."  For  his  conclusion  that  moral 
irresponsibility  is  the  consequence  of  determinism,  and  that,  therefore,  all  beings 
are  (morally)  irresponsible,  was  developed  by  me  in  my  second  edition  in  1892,  in 
the  third  chapter,  which  follows  (like  the  other  parts  of  the  book)  without  funda- 
mental change. 


310  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  214 

must  be  undertaken  by  the  State,  with  reference  to  offenses  com- 
mitted by  him,  (a)  As  in  every  other  natural  research  pursued 
in  accordance  with  the  doctrine  of  evolution,  the  first  thing  is 
the  matter  of  origin  and  development,  whether  it  be  the  punitive 
function,  or  the  organs  whereby  it  is  exercised  in  the  progress  of 
time.  These  past  facts  will  give  us  the  genesis  and  explanation 
of  existing  facts.  (6)  The  second  thing  is  the  examination  of  the 
social  facts  concerning  responsibility,  facts  that  develop  every 
day  and  which  lie  outside  of  all  the  theories  metaphysical  jurists 
can  construct  in  their  closets  with  however  logical  and  symmetri- 
cal order  but  yet  with  an  altogether  philosophical  forgetfulness  of 
the  reaHties  of  life. 

§  214.    Need  of  History  to  Determine  Basis  of  Responsibility. 

A  geologist  and  a  zoologist  who  wishes  to  explain  the  where- 
fore of  the  actual  configuration  of  the  globe  or  of  the  Hving  fauna 
would  in  our  day  be  ridiculed,  if  he  Hmited  himself  (as  for  a  long 
time  the  classical  schools  of  geology  and  biology  did,  not  without 
advantage  in  their  preliminary  study)  to  the  mere  descriptive 
examination  of  existing  forms.  On  the  contrary,  they  succeed 
more  and  more  in  dissipating  the  shadows  surrounding  the  mys- 
tery of  life  and  obtain  results  of  prodigious  value  when,  following 
the  glorious  paths  of  Lyell  and  Darwin,  they  fix  their  gaze  on  the 
prehistoric  epochs  buried  for  many  thousands  of  years  and  de- 
mand of  these  and  the  external  succession  of  living  species  the 
key  to  so  many  secrets.  Sociologists  and  criminal  sociologists 
must  do  the  same  for  the  same  reasons.  They  cannot  confine 
themselves  to  purely  descriptive  and  syllogistic  anatomical  re- 
searches (the  field  of  the  classical  criminal  school),  to  researches  in 
delinquency  and  criminahty  such  as  they  appear  to-day  in  civil 
society  or  as  they  are  observed  denuded  in  the  microcosm  of 
history.  They  must  seek  in  the  most  remote  manifestations  of 
life  the  elementary  and  distant  germs  of  the  penal  function  so 
complexly  constituted,  which  must  be  regulated  according  to  the 
exigencies  of  actual  life.  For  this  reason,  on  another  occasion, 
in  studying  the  crime  of  homicide  according  to  the  criteria  of  the 
positive  school,  I  thought  it  necessary  to  seek  in  the  prehistoric 
ages  of  human  life  the  germs  and  natural  evolution  of  that  crimi- 
nal act  and  the  penal  reactions  provoked  by  it.^  Every  living 
creature  struggles  for  its  existence;  hence,  every  act  which  attacks 
1  Ferri,  "  L'Omicidio,"  Introduction. 
V 


§215]  THE  PROBLEM  OF  PENAL  JUSTICE  311 

his  natural  conditions  of  individual  or  social  existence  determines 
a  defensive  reaction  on  his  part  which  is  direct  when  the  harm- 
ful consequences  of  this  attack  can  be  then  and  there  avoided,  and 
indirect  when  by  punishing  the  author  its  repetition  can  be  avoided. 
This  is  the  primitive,  irreducible,  elemental  fact.  It  constitutes 
one  of  the  basic  characteristics  of  organized  or  living  matter.  It 
is  woven  into  the  essential  conditions  of  sensibility  and  move- 
ment. It  is  shown  in  the  most  elementary  forms  of  life,  in  the 
simple  protoplasm  as  in  the  plant.  Step  by  step  it  follows  all  the 
successive  compUcations  and  attains  the  most  complex  and  highest 
forms  of  individual  and  social  defense,  direct  and  indirect.  In 
its  progress  it  is  complicated  with  other  physical  and  psychic 
elements,  in  the  means  of  defense  and  iu  the  feelings  and  ideas 
which  accompany  them  and  which  are  transmitted  by  heredity. 
But  it  always  retains  the  primitive  base  just  indicated. 

§  215.   Evolution  of  Defensive  Reaction. 

Biology  and  sociology,  far  from  being  in  a  mutual  relation  of 
succession  or  of  real  and  strict  independence,  are  concomitants 
and  parallels,  since  animal  life  from  the  beginning  is  shown  in  a 
double  series  of  individual  and  social  organisms.^  Regardless 
therefore,  of  the  changing  and  distinct  predominance  of  the  indi- 
vidual or  social  form  in  the  different  phases  of  human  evolution, 
we  still  see  both  forms  of  defensive  reactions  constantly  occurring 
everywhere  that  we  find  animal  and  human  life.  Of  this  we  find 
an  indirect  proof  in  the  constant  observation  that  in  all  of  the 
manifestations  of  social  life,  all  different  forms  and  diverse  types 
coexist  with  the  successive  predominance  of  one  over  the  other. 
It  would  be  erroneous  to  believe  that  the  different  forms  of  sexual 
and  family  relations  (promiscuity,  matriarchy,  patriarchy,  poly- 
andry, polygamy,  and  monogamy)  were  successive,  one  institu- 
tion taking  the  place  of  another.  They  have  always  coexisted 
and  still  coexist  even  in  civilized  society,  now  one,  now  another, 
has  predominated,  and  that  in  the  order  indicated,  but  without, 
for  example  in  Western  Europe,  the  exclusion  by  monogamy  (the 
legal  and  predominant  form)  of  extra-legal  forms  of  polygamy 
and  polyandry.  The  same  may  be  said  of  the  forms  taken  by 
property  in  land  (collective,  communal,  and  individual),  which 
still  coexist  in  spite  of  the  excessive  predominance  of  the  individual 

*  Rabbeno,  "Dei  rapporti  fra  la  biologia  e  la  sociologia,"  in  the  "Rivista  di 
filosofia  scientifica"  (March,  1883). 


312  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  215 

form.^  The  same  is  true  of  political  forms  and  in  general  of  the 
different  types  of  social  constitution  under  the  two  opposite  (war- 
like, military,  and  pacific-industrial)  forms.  In  like  manner,  the 
individual  and  collective  forms  of  defense  have  always  existed 
and  still  exist,  although  one  or  the  other  has  always  predomi- 
nated. Even  in  the  lowest  animals,  in  the  protozoic  kingdom, 
defensive  reaction  under  the  form  of  irritabihty  is  observed  not 
only  in  the  individuals  taken  separately,  but  also  in  the  animal 
colonies  which  react  in  cases  of  collective  perils;  and  in  such  cases 
they  always  react  under  the  form  of  social  defense.  This  becomes 
more  evident  as  we  ascend  in  the  zoological  scale  and  find  social 
life  under  forms  more  nearly  approaching  those  of  humanity  and 
the  association  of  individuals  more  and  more  developed  in  the 
organic  and  psychic  relation.  Furthermore,  even  among  animals, 
especially  among  the  more  intelligent  mammals,  we  already  reach 
the  higher  phase  where  social  defense  is  no  longer  exercised  by 
the  collectivity  but  by  its  chief.  It  is  exercised  certainly  in  a 
personal  interest,  but  in  a  collective  interest  at  the  same  time, 
exactly  as  happens  in  savage  or  barbarian  society.  Indeed 
many  herbivorous  mammals  Uve  in  society  and  there  is  then  al- 
ways an  individual  who  exercises  a  certain  authority  over  the 
others,  who  guides  and  defends  them.  This  is  true  of  elephants 
horses,  buffaloes,  and  apes.^  Now  this  evolution  of  defensive 
reaction  is  repeated  in  an  entirely  analogous  way  among  men. 
There  are  savage  tribes  where  individuals  live  isolated  without 
any  chief  and  among  whom  every  attack  on  the  conditions  essen- 
tial to  existence  produces  in  the  victim  a  purely  individual  and 
transitory  reaction,  not  subject  to  any  tribal  rule  and  regarded 
as  a  purely  private  affair.  The  sole  judge  who  decides  whether 
an  act  is  or  is  not  criminal,  that  is,  harmful  or  dangerous,  the  sole 
executioner  of  the  judgment,   is  the  individual  attacked   who 

1  Lavellaye,  "Les  formes  primitives  de  la  propriete"  (Paris,  1888);  LetoumeaUy 
"L'evolution  de  la  propriete"  (Paris,  1889). 

*  Brehm,  "La  vita  degli  animali,"  Italian  translation,  Turin,  1872-1875, 
Vol.  I,  pp.  29,  46;  Espinas,  "Les  societes  animales"  (Paris,  1878),  2d  ed., 
p.  450.  Facts  show  how  inexact  are  the  "a  priori"  statements  of  Letoumeau,  in 
"L'evolution  juridique  dans  les  diverses  races  humaines"  (Paris,  1891),  p.  13,  where 
he  says  that  bees  and  ants  have  "an  absolute  attachment  for  the  collectivity,  which 
protects  them  from  every  anti-social  temptation,"  and  that  consequently,  they  have 
no  "juridical  instinct,"  lacking  the  need  of  it.  Furthermore,  however,  at  page  15 
Letoumeau  contradicts  himself,  for,  while  stating  that  in  general  "animals  lack 
a  juridical  sense,"  because,  he  says,  in  order  for  them  to  have  it,  the  sentiment  of 
defense  would  have  to  be  transformed  into  one  of  vengeance,  and  yet  he  later  cites 
cases  of  vengeance  in  animals. 


§216]  THE  PROBLEM  OF  PENAL  JUSTICE  313 

reacts  with  the  intent  of  present  and  future  defense;  and,  pro- 
voked by  resentment  and  desire  for  vengeance,  which  aheady 
exists  among  the  animals,  he  usually  exceeds  all  bounds.  This 
is  what  happens,  for  example,  among  the  anarchic  tribes  of  cen- 
tral Africa,  among  the  Caribs,  Fuegians,  North  American  Indians, 
and  Esquimaux.^  The  defensive  reaction  under  this  individual 
form  may  (as  Puglia  remarks)  be  shown  in  two  different  ways; 
either  as  an  immediate  and  instantaneous  reaction  at  the  mo- 
ment of  aggression;  or  as  a  repressed  reaction  delayed  for  a  more 
opportune  time,  which  is,  strictly  speaking,  a  real  vengeance, 
according  to  Puglia,^  whose  distinction  agrees  with  the  facts. 
It  is  the  psychological  reflection  of  the  distinction  which  we  have 
just  made  between  direct  and  indirect  offensive  reaction.  But 
this  difference  does  not  mark  two  successive  epochs.  In  the 
first  place,  proof  of  succession  is  lacking,  and,  in  the  second 
place,  it  is  easy  to  believe  that  in  each  case  the  temperament  of 
the  injured  and  the  opportunity  presented  determined  the  prompt- 
ness or  the  delay  of  the  defensive  reaction  among  primitive  men, 
as,  indeed,  among  the  higher  animals  (Darwin  has  cited  instances 
of  this).  3 

§  216.   Identity  of  Military  and  Legal  Reaction. 

Spencer*  makes  an  important  observation  on  this  subject 
when  he  points  out  the  primal  and  fundamental  identity  or  inti- 
mate analogy  between  the  defensive  reaction  against  a  foreign 
agressor  (military  defense)  and  against  a  domestic  agressor  (legal 
or  judicial  defense).^  We  come  upon  this  indentity  not  only  in 
the  facts  of  human  sociology  reported  by  this  great  philosopher 
but  also  among  the  facts  noted  in  the  sociology  of  animals.  In- 
deed, among  these,  the  individual  or  collective  reaction  is  produced 
in  the  same  manner  and  for  the  same  reasons,  whether  the  agres- 
sor belongs  to  a  strange  tribe  or  is  a  member  of  the  same  society. 
In  primitive  humanity,  as  Spencer  says,  we  notice,  especially 
when  the  judicial  defensive  reaction  begins  to  prevail  as  a  social 

1  Lubbock,  "Les  temps  prehistoriques  et  rorigine  de  la  civilisation"  (Paris); 
Letourneau,  "La  sociologie,"  pp.  444  et  seq.,  and  "L'6volution  juridique  dans  les 
diverses  races  humaines,"  Chap.  I,  §  VI. 

2  Puglia,  "Evoluzione  storica  e  scientifica  del  diritto  e  della  procedura  penale" 
(Messina,  1882),  pp.  30,  31.  Likewise,  Zocca-Rossa,  "L'etA  preistorica  del  diritto 
penale  a  Roma"  (Catane,  1883),  pp.  9  et  seq. 

'  Darvnn,  "Origin  of  Species." 

*  Spencer,  "The  Principles  of  Sociology." 

*  Darwin,  "The  Origin  of  Species."     Likewise,  Spencer,  "Bases  of  Morals." 


S14  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§216 

and  permanent  function,  its  motive  principles  and  organs  of 
execution  are  the  same  as  those  of  the  mihtary  defense  but  that 
it  departs  therefrom  and  differentiates  more  and  more  in  the 
ultimate  phases  of  its  evolution.  This  community  of  origin,  which 
even  the  living  language  preserves  and  reveals  in  the  traditional 
expressions  —  the  sword  of  justice,  a  public  enemy  —  used  in 
purely  judicial  matters,  is  observable  as  an  atavic  return,  when 
in  times  of  social  upheavals,  the  dominant  class  resorts  to  the 
creation  of  extraordinary  mihtary  tribunals  to  judge  and  condemn 
not  so  much  the  actual  criminal  material  acts  (homicide  or  arson) 
as  mental  crimes  of  pohtical  heterodoxy.  It  is,  however,  natural 
that  the  transitory  and  excessive  individual  form  of  defensive 
reaction  and  vengeance  should  early  begin  to  yield  to  the  coexis- 
tent social  form.  This  occurs  first  in  the  direct  reaction  of  the 
collectivity,  afterwards  in  an  official  duty  exercised  by  the  chief 
in  the  name  of  the  tribe.  This  is  unavoidable  on  account  of  the 
social  interest  in  order  to  prevent  (as  Darwin  says)  ^  a  tribe 
decimated  either  by  enemies  from  without  or,  what  is  still  worse, 
by  its  owTi  members  from  losing,  with  respect  to  other  tribes,  the 
forces  necessary  in  the  struggle  for  existence.  Individual  reac- 
tion being  in  its  nature  excessive  and  in  turn  provoking  new  and 
sanguinary  reactions,  the  collectivity  quickly  feels  (as  Spencer 
remarks)  the  need  of  suppressing  or  Hmiting  these  continuing 
causes  of  weakness.  The  predominance  of  "public  vindication" 
over  the  vengeance  of  individuals  begins  with  a  mere  interfer- 
ence by  the  collectivity  in  private  quarrels,  giving  place  to  the 
judicial  rules  and  institutions  of  feuds,  composition,  and  protec- 
tion to  the  wrongdoer  himself  when  threatened  with  the  exces- 
sive reaction  by  the  victim.  These  customs  which  we  find  among 
many  savage  tribes  and  which  once  existed  in  the  civilizations  of 
Mexico,  Greece  and  Rome,  the  Orient,  and  in  Europe  of  the 
Middle  Ages,  although  they  to-day  seem  to  represent  a  barbar- 
ous state  of  penal  justice,  were  in  their  own  times  a  great  moral 
and  social  progress  in  restraining  the  excessive  violence  of  the 
reactions  of  individual  or  family  vengeance.  The  punishment  of 
crime  like  military  defense^  finally  becomes  an  exclusive  attri- 
bute of  the  State.    This  unquestionable  portion  of  truth  is  con- 

^  Darwin,  "The  Origin  of  Species,"  Likewise,  Spencer,  "The  Basis  of  Morals." 
*  For  interesting  historical  date,  see  Cherry,  "Lectures  on  the  Growth  of  Crim- 
inal Law  in  Ancient  Communities"  (London,  1890),  and  repubUshed  in  the  "Scuola 
positiva,"  31  July,  1891,  p.  276. 


§216]  THE  PROBLEM  OF  PENAL  JUSTICE  315 

tained  in  the  system  of  such  writers  as  Rousseau,  Beccaria,  Filan- 
gieri,  and  others,  who  hold  that  the  State's  right  to  punish  is  based 
on  the  grant  by  all  the  members  of  the  association  who  reassume 
this  right  in  a  transitory  way  when  the  State  is  unable  to  exer- 
cise it  for  their  protection  (as  for  example,  in  the  cases  of  self-de- 
fense). Although  Fouillee,  de  Greef,  and  other  sociologists  to-day 
rightly  give  great  importance  to  the  contractual  element  in  social 
organisms,  the  inaccuracy  of  that  theory  and  the  part  now  re- 
jected is  the  artificial  character  given  to  the  processes  whereby 
the  reaction  of  defense  and  vengeance  ceased  to  be  individual  and 
became  social.  Considering  the  different  forms  of  defensive 
reaction  from  the  simplest  movements  of  the  individual  up  to 
the  high  punitive  function  of  the  State,  and  observing  the  organs 
of  this  function,  we  note  that  they  only  begin  to  form  when  the 
transitory  acts,  whereby  the  injured  individual  or  society  react, 
have  been  replaced  by  a  permanent  duty  reserved  to  the  chief 
of  the  tribe.  At  the  beginning  he  is  not  only  law-giver  in  cases 
where  custom  has  as  yet  imposed  no  rule;  but  he  is  judge  and 
executioner  of  his  own  sentence.  This  is  the  prehistoric  germ 
of  the  principle  afterwards  repudiated  by  science  —  that  justice 
emanates  from  the  king.  Later  in  the  ulterior  stages  when  the 
social  body  has  become  more  complex  and  its  functions  more 
complicated,  the  chief  of  the  tribe  delegated  to  a  few  ministers 
first  the  execution  of  his  administrative  or  judicial  orders  and 
finally  the  right  to  insure  judgments  and  decrees.  These  min- 
sisters  and  agents  of  his  will,  in  whom  at  first  because  of  the 
identity  between  these  two  functions  the  military  character  was 
united  with  the  sacerdotal  (as  in  the  chief  of  the  tribe  who  is 
always  both  commander-in-chief  and  high  priest)  finally  became 
magistrates  of  an  exclusively  judicial  character  due  to  the  in- 
cessant differentiation  taking  place  in  the  functions  and  the  social 
structure.  This  is  exactly  what  we  observe  among  civilized 
peoples.^ 

^  See  proof  in  Spencer,  "Principles  of  Sociology,  Vol.  Ill,  p.  V,  Chap.  XIII,  and 
"Professional  and  Industrial  Institutions,"  Chap.  VII.  See  also,  among  criminolo- 
gists, £/iero,  "  Delle  origini  storiche  del  diritto  di  punire,"  in  "Opuscoli  criminali" 
(Bologne,  1874);  Rolin,  "Les  phases  du  droit  penal,"  in  the  "Revue  intema- 
tionelle"  1882,  I.  For  the  survival  of  this  primitive  state  without  distinction 
between  judiciary  organs  and  functions,  see  Ou  Tsouglieu,  "  L'organizzazione  penale 
della  China,"  S.  P.  (January,  1889),  and  "De  la  responsabilite  des  autorites  locales 
en  cas  de  d^lits  commis  par  leurs  administres,"  A.  C.  A.  C.  (Brussels,  1893),  p.  385. 


816  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  217 

§  217.   Penal  Lack  of  Recognition  of  Morality  of  Act. 

This  constant  fact  of  the  coexistence  of  the  military  and  sacer- 
dotal characters  in  the  organs  of  the  defensive  and  repressive 
function,  among  all  the  primitive  peoples,  enables  us  to  give  the 
positive  explanation  of  a  fundamental  characteristic  which  is 
fixed  and  constant  in  the  primitive  administration  of  society 
and  the  science  of  which  it  is  the  object.  When  the  defensive 
reaction  is  exercised  in  the  individual  form,  it  is  evident  that 
its  sole  and  basic  motive  hes  in  personal  benefit  to  the  offended 
person  and  his  irresistible  tendency  towards  his  own  preservation. 
The  animus,  as  a  characteristic  of  moral  perversity  in  the  agressor 
or  delinquent,  is  an  element  that  is  ignored  by  the  individual 
reaction  as  foreign  to  it.  This  is  true  not  only  in  the  primitive 
and  savage  stages  of  humanity,  but  in  every  society,  however 
advanced  it  may  be.  Furthermore,  in  the  beginning  of  society 
the  social  reaction  itself,  whether  exercised  directly  by  the  col- 
lectivity or  indirectly  by  the  chief  of  the  tribe,  has  no  other 
motive  or  criterion  than  social  utility,  the  necessity  of  preserva- 
tion. Even  then  the  maUce  of  the  agressor  is  an  element  foreign 
to  this  defensive  reaction,  an  element  of  which  it  is  ignorant.^ 

^  For  this,  see  Steinmetz,  "  Ethnologische  Studien  zur  ersten  Entwickelung 
der  Strafe"  (Leipsic,  1894),  Vol.  II,  where  the  " non-international "  quality  of 
punishment  is  established.  See  also  Holmes,  "  The  Common  Law,"  Chap.  I,  "  Prim- 
itive Forms  of  Responsibility,"  a  very  interesting  book,  because  it  shows  the  pro- 
found and  essential  difference  between  the  "juridical  feeling"  of  the  Latin  and  the 
Anglo-Saxon  peoples.  For  while  the  Latins  believe  that  the  general  principles  of 
law  can  only  be  conceived  of  as  the  final  and  degenerate  forms  of  Roman  law, 
the  Anglo-Saxons,  although  they,  too,  have  felt  its  influence,  have  an  entirely 
different  juridical  sense.  An  almost  daily  example  of  this  is  the  different  way  of 
looking  upon  reparation  in  damages  for  torts.  It  is  of  interest  to  note  that  the 
general  theories  of  the  positive  criminal  school  follow  Anglo-Saxon  juridical  thought. 
Take,  for  example,  reparation  in  damages,  which  the  Latins  look  upon  as  a  social 
fimction,  rather  than  a  private  right.  It  is  the  same  with  the  theory  of  responsi- 
biUty,  bom  of  the  natural  spirit  of  vengeance,  which  the  Latins  deprive  of  every 
quality  of  objective  reality  and  unfit  for  the  necessities  of  existence.  So  with  the 
theory  of  defamation;  the  positive  school  would  punish  such  an  act  only  when  it 
was  determined  by  motives  of  social  interest  instead  of  anti-social  motives  or  per- 
sonal interest,  such  as  hate,  cupidity,  or  vengeance.  This  distinction  of  social 
motives  is  allowed  in  common  law  "for  the  public  benefit."  The  germ  of  the 
theory  of  natural  crime  is  contained  in  the  distinction  made  by  Anglo-Saxon  crim- 
inal law  between  common  law  and  statutory  crime,  "mala  in  se"  and  "mala  pro- 
hibita."  See  Holmes,  supra,  pp.  76,  79,  98.  This  distinction  existed  in  Roman 
law,  whose  positive  spirit  was  far  different  from  the  metaphysical  abstractions  of 
the  classical  criminal  school,  and  closely  resembled  the  doctrines  of  Anglo-Saxon 
law  (a  new  argument  in  favor  of  the  similarity  of  Modem  England  and  Ancient 
Rome)  and  of  the  positive  school. 


§218]  THE  PROBLEM  OF  PENAL  JUSTICE  317 

The  idea  of  moral  culpability  as  a  condition  of  punishment  is 
first  found  in  the  double  character,  military  and  sacerdotal,  of  the 
chief  of  the  tribe,  and  later  in  the  ministers  delegated  by  him. 
When  the  priests  achieved  the  ascendancy  which  they  have  in 
all  primitive  societies,  they  finally  appropriated  completely  the 
repression  first  of  anti-religious  and  then  of  anti-social  acts.  The 
defensive  or  repressive  reaction  which  when  exercised  by  the 
offended  individual  had  a  quahty  of  private  vengeance  and 
when  exercised  by  society  or  the  chief  of  the  tribe,  a  quality  of 
pubUc  vengeance,  assumed  when  exercised  by  the  sacerdotal  caste, 
the  character  of  divine  vengeance.  It  ceased  to  be  a  purely  defen- 
sive function  in  becoming  a  religious  or  moral  mission  with  the 
natural  accompaniment  of  every  religion,  a  strict  formalism  and 
especially  a  mystical  spirit  of  penitence  and  purification.^  This 
rigid  and  religious  characteristic  of  the  penal  function,  even  when 
it  has  yielded  first  in  directly  political  offenses,  and  then  in  or- 
dinary offenses  to  claims  of  lay  and  civil  ideas  and  power,  never- 
theless leaves  in  its  wake  (since  dissolution  hke  evolution  is 
gradual)  the  idea  that  the  repressive  agency  has  a  function  of  moral 
betterment  or,  in  the  most  advanced  state,  of  retributive  justice; 
because  (as  Kroepelin  says)  the  mere  change  of  rehgious  precepts 
into  moral  precepts  does  not  affect  their  origin.^ 

§  218.   Evolutionary  Phases  of  Law. 

We  may  therefore  conclude  that  penalties  (and  by  that  word  we 
designate  the  entirety  of  legal  means  used  by  society  in  the  strug- 
gle with  crime)  have  passed  through  four  phases  of  evolution: 
the  primitive  (defensive  and  vindictive  reaction,  individual,  social, 
and  instantaneous);  the  religious  (that  of  divine  vengeance); 
the  ethical  (that  of  medieval  p)enitence);  and  the  juridical 
(in  the  sense  of  the  abstract  and  "a  priori"  law  of  the  classical 
school).  It  is  readily  seen  that  in  science  and  still  more  in 
public  opinion  and  in  law  (which  progresses  less  rapidly),  we  are 
in  the  juridical  phase,  or  more  accurately,  in  the  ethico-legal 
phase  of  punishment:  since  all  evolution  is  produced  not  abruptly 
but  by  degrees,  and  through  a  series  of  gradations. 

^  For  the  religious  origin  of  punishment,  see  Steinmetz,  "  Ethnologische  Studien 
zur  ersten  Entwickelung  der  Strafe,"  'passim.  And  Mans,  "La  religion  et  les 
origines  du  droit  penal,"  in  the  "Revue  de  I'histoire  des  reUgions"  (1897),  Fasc. 
1  and  2. 

»  Kraeplin,  "La  colpa  e  la  pena,"  R.  F.  S.    (1883),  II,  p.  527. 


318  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  219 

§  219.    The  Last  Evolutionary  Phase  of  Law ;  the  Social  Phase. 

The  question  now  is  to  inaugurate  and  realize  the  social  phase 
where,  thanks  to  the  new  data  of  criminal  anthropology  and 
statistics  of  the  origin  of  crime,  punishment  will  no  longer  be 
retribution  for  a  moral  fault  by  a  proportionate  chastisement 
(ethico-legal  phase)  but  a  sum  of  preventive  and  repressive 
social  measures,  which,  more  efficaciously  and  humanely,  corres- 
ponding to  the  nature  and  origin  of  crime,  will  protect  society  from 
its  assaults.^  The  step  which  we  wish  taken  by  the  science  and 
legislation  of  penal  law,  is,  therefore,  an  advance  which  will  com- 
plete the  evolutionary  cycle  by  giving  to  the  punitive  instrument 
the  natural  and  spontaneous  character  of  a  purely  social  function, 
which  it  had  at  the  beginning  and  which,  let  us  not  forget,  is 
the  only  one  really  understood  by  pubhc  sentiment.  In  this 
connection  it  may  be  remarked  that  the  return  to  primitive  forms 
or  characteristics  may  also  be  considered  as  a  constant  sociological 
law  in  other  manifestations  of  social,  economic,  and  political  life. 
Indeed,  as  Loria  observes,  primitive  humanity  owes  to  the  first 
impressions  of  nature  surrounding  it,  the  fundamental  lines  of 
its  existence.  With  the  progress  of  intelligence  and  the  complica- 
tions which  increase  according  to  the  laws  of  evolution,  we  see 
an  analytical  development  of  the  principal  elements  contained  in 
the  first  germs  of  every  institution.  This  analytical  development 
once  accomplished,  wherein  often  different  elements  are  in  hostility 
in  passing  from  one  excess  to  another,  humanity  itself,  attaining 
a  high  degree  of  its  evolution,  again  reunites  them  in  a  final  syn- 
thesis, which  includes  its  primitive  starting  point.^    This  return, 

*  It  is  well  known  that  a  great  number  of  the  most  celebrated  criminalists 
through  a  more  positivistic  turn  of  mind  have  based  the  right  of  punishment  as 
"social  utility,"  "direct  defense,"  "indirect  defense,"  "self-preservation,"  "poUt- 
ical  necessity,"  and  so  forth;  but  the  essential  difference  between  these  theories  and 
that  of  the  positive  school  consists  in  the  fact  that  Beccaria,  Bentham,  Romagnosi, 
Comte,  Martin,  Schulze,  Thiercelin,  and  Carmignani  always  had  in  their  system 
the  idea  of  the  moral  culpabihty  or  responsibility  of  man,  as  a  test  and  condition 
superior  to  the  idea  of  social  necessity,  while  we  exclude  it  from  the  juridical 
and  social  field,  as  I  will  show,  post.  This  is  the  reason  that  Geyer,  "Grund- 
riss  zu  Vorlesungen  fiber  deutsches  Strafrecht"  (Munich,  1884),  p.  19,  recognized 
that  the  new  school  is  more  logical  than  the  old  utilitarian  schools,  because  it  is 
based  on  the  denial  of  moral  fault,  which  they  admit.  See  also,  Morrison,  "  Crime 
and  its  Causes";  "Theory  of  Criminality"  (April,  1889).  Even  with  the  contem- 
poraneous classical  criminalists,  although  the  part  played  by  the  idea  of  social  util- 
ity becomes  larger,  this  idea  remains,  however,  is  subordinate  to  the  ethical  test  of 
human  culpabihty. 

^  Loria,  "La  teorica  economica  della  costituzione poUtica,"  p.  141;  to  the  same. 


§219]  THE  PROBLEM  OF  PENAL  JUSTICE  319 

however,  is  not  a  pure  and  simple  repetition.  It  is  the  comple- 
tion of  a  cycle  that  cannot  but  contain  the  effects  and  conquests 
of  the  long-preceding  evolution,  and,  hence,  that  is  far  above,  in 
reality  and  public  sentiment,  its  primitive  embryo.  As  in  Goethe's 
famous  simile,  humanity  progresses  like  a  spiral  which  seems  to 
come  back  on  itself,  but  is  always  advancing.^  Thus  it  is  that  in 
the  economic  domain  there  is  to-day  a  marked  trend  of  property  in 
the  collectivist  direction  (even  outside  of  socialism  and  the  limits 
imposed  by  it  on  the  absolute  right:  "utendi  et  abutendi")  which 
recalls  the  primitive  forms  of  collective  ownership.  A  more  strik- 
ing illustration  is  that  of  women,  who  in  primitive  societies  are 
forced  to  labor,  but  subsequently  devote  themselves  solely  to 
domestic  cares.  To-day  they  wish,  and  that  rightly,  to  acquire 
equally  with  men  the  right  to  labor,  although  naturally  remain- 
ing sheltered  from  the  most  brutal  tasks  imposed  upon  them 
among  savages.  Again,  according  to  Hartmann,  religions  in 
primitive  times  thought  that  a  human  being  could  attain  happi- 
ness in  his  individual  life.  Then  they  placed  happiness  in  the 
life  beyond  the  tomb.  To-day,  however,  the  tendency  is  to 
replace  it  in  human  life  itself,  but  reserving  it  for  the  generations 
to  come.  So  also  in  politics  (according  to  Spencer)^  the  will 
of  all,  the  sovereign  element  in  primitive  humanity,  yields  little 
by  little  to  the  will  of  an  individual;  then  to  that  of  a  small  num- 
ber (these  are  the  various  aristocracies,  of  arms,  birth,  profession, 
and  wealth);  and  finally  tends  to  become  sovereign  again  in  the 
triumph  of  democracy.  Hence,  in  full  harmony  with  this  socio- 
logical law,  of  which  other  illustrations  might  be  given,  we  are 
right  in  demanding  that  the  defensive  penal  function  (often  the 
development  given  in  past  centuries  and  in  our  own  of  divers 

effect  Cognetti,  "Le  forme  primitive  nell'  evoluzione  economica"  (Turin,  1891), 
ad  fin.  And  Dramarcd,  "  Transf  ormisme  et  socialisme,"  in  the  "Revue  Socialiste" 
(February,  1885),  §  5,  "La  loi  de  regression  apparente."  This  law  is  dealt  with  in 
"Divorzio  e  sociologia,"  S.  P.  (1893),  No.  16,  in  "Omicidio,"  and  "Socialismo  e 
scienza  positiva,"  pp.  97  et  seq.,  2d  ed.  (Palermo,  1900).  See  also  Ferri's  reply  to 
Garofalo,  "Discordie  positiviste  sul  socialismo"  (Palermo,  1896),  and  Appendix  to 
the  French  translation  of  "Socialismo  e  scienza  positiva"  (Paris,  1897),  p.  212. 

1  This  idea  has  been  sustained  by  many  examples  by  De  la  Grasserie,  "De  la 
forme  graphique  de  revolution,"  R.  I.  S.  (September,  1895);  by  Kranz,  "Laloide 
la  retrospection  revolutionnaire"  A.  I.  I.  S.  (1896),  II,  515,  and  by  Zerboglio,  "Le 
retour  au  passe"  in  the  "Devenir  social"  (September,  1896).  De  Greef,  in  "Trans- 
formisme  social,"  p.  473,  raised  several  objections,  but  this,  it  seems  to  me,  was 
because  he  took  it  in  the  sense  of  a  return,  pure  and  simple,  and  not  of  an  apparent 
one  accompanied  by  essential  progress.  See  also  Demoor,  Massart,  and  Vander- 
velte,  "L'6volution  regressive"  (Paris,  1897).       *  Spencer,  Sociology  III,  Chap.  V. 


320  POSITIVE  THEORY  OF  PENAL  RESPONSEBILTTY  [§220 

component  elements  and  the  predominant  ethical  criterion  of  cul- 
pabihty)  should  return  to  its  starting  point  and  again  become  a 
social  function  inspired,  not  by  alien  and  inaccessible  criteria,  but 
by  the  actual  needs  of  human  society,  guided  by  positivist  no- 
tions of  the  genesis  of  delinquency. 

§  220.   Development  of  Penal  Law  Toward  the  Defensive. 

There  remains  one  indestructible  effect  of  the  slowly  ascending 
evolution  through  which  this  function  has  passed  in  ceaselessly 
progressing  and  advancing  as  it  became  farther  removed  from 
its  starting  point.  It  has  been  divested  of  all  spirit  of  brutal 
vengeance  to  assume  the  character  of  a  defense  pure  and  simple, 
imposed  by  the  necessities  of  social  conservation.  Perhaps  we 
shaU  see  the  continued  existence  for  some  time  to  come  of  the 
sentiment  of  hatred  for  the  evildoer  which  has  so  much  value 
in  Tarde's  eyes  ^  as  a  repellant  and  preventive  moral  force.  While 
it  has  a  value  in  the  present  phase  of  transitory  morals,  still  it  is 
but  one  of  the  numberless  psychological  factors  interwoven  in 
the  origin  of  crime  and  this  author  therefore  exaggerates  its  effi- 
cacy. It  wiU  continue  to  grow  less  until  it  disappears,  as  has 
happened  in  the  case  of  a  similar  feeling  with  regard  to  the  insane. 
It  is  not  more  than  a  hundred  years  since  madmen  were  detested 
and  punished,  because  their  insanity  was  attributed  to  their  will. 
So,  to-day,  criminals  are  detested  because  the  tendency  to  crime 
is  attributed  to  moral  fault  and  free  choice.  Even  if  a  feeling  of 
repugnance  is  retained  for  them  as  for  other  diseased  persons, 

1  Tarde,  "Penal  PhUosophy"  (Boston,  1912).  The  author  believed  that  he 
was  interpreting  my  thought  at  the  Congress  of  Criminal  Anthropology  at  Ge- 
neva by  saying  that  I  foretold  the  disappearance  of  hate  of  criminals,  as  that  of 
the  insane,  through  the  effects  of  time  and  evolution.  "  Revue  penitentiaire"  (De- 
cember, 1896),  p.  1242.  Already,  as  Gauckler  said  in  "De  la  peine  et  de  la  fonction 
du  droit  penal  an  point  de  vue  sociologique,"  in  the  "Archives"  (September,  1893), 
p.  46,  there  is  a  constant  tendency  in  the  increase  of  pity  and  hence  in  the  attenua- 
tion of  punishment,  so  that  as  Orchanski  said  in  "Les  criminels  russes,"  A.  P. 
(1878),  XIX,  p.  1,  "instinctive  hate  of  the  delinquent  is  a  feehng  of  inferior  man." 
But  furthermore,  it  is  clear  that  the  reason  of  my  thought  lies  in  the  scientific  proof 
that  we  must  consider  crime  (especially  in  its  atavic  forms)  as  one  of  the  forms  of 
human  pathology,  and  not  as  the  effect  of  an  evil  will;  and  this  is  what  happened 
in  the  case  of  insanity.  And,  hence,  if  it  is  true,  as  Tarde  says,  that  humanity  hates 
or  does  not  hate  actions  dep)ending  upon  the  quality  of  the  determinant  will,  it 
is  evident  that  when  crime  is  recognized  as  undetermined  by  evil  will,  the  reason 
for  hating  it  will  disappear.  To  this  effect,  see  Jdsgerma,  "Les  caracteres  du  cri- 
minel  ne  sont  d'origine  pathologique,"  in  "Actes  du  Congres"  (Brussels,  1893) 
p.  34;  Cobade,  "De  la  responsabiUt6  criminelle,"  p.  37;  Vorgha,  "Die  Abschaffung 
der  Stretknechtschaft,"  2  vols. 


§221]  THE  PROBLEM  OF  PENAL  JUSTICE  321 

hatred  at  least  is  inexcusable.  It  may  be  said  in  summary  that 
the  study  of  this  natural  evolution,  wherein  from  the  embryonic 
fact  of  a  reaction  of  irritability  and  animal  sensibility  we  reach 
the  high  and  complicated  entirety  of  customs,  institutions,  and 
laws,  constituting  the  modern  puntive  agency,  we  are  led  to  a 
conclusion  made  up  of  the  two  parts  of  the  same  fundamental 
principle. 

§  221.   Penal  Function  Defensive  and  Unconnected  with  Conditions  of 
Moral  Liberty. 

The  first,  already  more  or  less  recognized  by  some  criminolo- 
gists and  practically  admitted  by  public  opinion  based  on  the  real 
observation  of  everyday  facts,  consists  in  the  recognition  of  the 
punitive  agency  as  a  function,  purely  defensive  or  preservative, 
of  society.^  The  second,  which  is  novel  as  an  explicit  affirmation 
and  on  that  account  at  first  warmly  contested  but  now  accepted 
as  a  premise  by  the  eclectics  (without  the  courage  to  draw  from  it 
logically  the  radical  consequences  which  it  involves),  consists  in 
the  independence  of  this  function  with  respect  to  any  condition 
of  moral  liberty  or  moral  culpability  in  the  delinquent.  By  this 
second  part,  we  really  penetrate  with  criminal  sociology  to  the 
quick  of  the  fundamental  problem  of  human  responsibility. 

^  Certainly,  this  function  of  defense  or  protection  from  crime  either  individual 
or  social  cannot  be  independent  of  all  rules  and  conditions,  as  I  will  show,  answer- 
ing the  criminalists,  who  constantly  reproach  us  by  an  accusation  as  easy  as  ill- 
founded,  of  sacrificing  the  protection  of  the  accused  delinquent  to  the  tyrannical 
authority  of  a  "wretched  social  interest." 


CHAPTER  III 

OBJECTIONS   TO   NEGATION   OF   FREE   WILL 

The  penalty  (after  the  fact)  is  not  a  defense  (before  the  fact).  Social  defense  is 
not  legal  defense.  Positive  origin  of  law  in  its  individual  and  social 
aspect.  Social  defense  and  class  defense  in  penal  law.  Atavic  and  evo- 
lutionary criminaUty. 

§  222.    Objections  to  Theory  of  Defensive  Penal  Justice. 

It  is  well,  however,  to  dispose  forthwith  of  some  of  the  objec- 
tions, tirelessly  directed  by  even  the  more  recent  classical  crimi- 
nologists and  by  some  eclectics,  to  the  principle  of  social  defense 
and  preservation  considered  as  the  absolute  justification  of  the 
penal  function  without  any  admixture  of  other  principles  to 
complete  and  regulate  it.  These  principles  are  wrongly  called 
"higher  principles"  (of  separative  or  distributive  justice)  since 
it  is  clear  that  humanly  speaking  there  is  nothing  "higher"  than 
the  necessities  of  human  life,  either  individual  or  social.  It  is 
time  to  abandon  forever  the  superannuated  distinctions  between 
the  useful  (called  arbitrary,  vulgar,  and  variable),  and  the  just 
(absolute,  noble,  eternal);  since  both  are  fundamentally  the 
same  thing.  What  is  just  is  only  the  useful  responding  definitely 
to  the  natural  conditions  of  human  existence  at  a  given  time  and 
place  and,  therefore,  distinct  from  the  immediate  and  transitory 
utiUty  which  does  not  conform  to  these  same  conditions  and 
which  alone  merits  these  low  qualifications  and  which  the  posi- 
tivists  never  concede  as  a  rule  of  life.^  The  objections  are  as 
follows:  (a)  The  right  of  punishment  cannot  be  likened  to  the 
right  of  defense,  since  defense  looks  to  a  future  fact  and  punish- 
ment regards  an  accomplished  fact,  (b)  The  reason  of  defense 
or  social  preservation  considered  as  the  sole  principle  of  the  right 
of  punishment  is  a  step  backward,  when  compared  with  the 
reason  of  tutelage  or  judicial  defense  advocated  by  the  contem- 

*  Among  the  most  recent  eclectics,  SaleiUes,  "Individualization  of  Punish- 
ment" (Little,  Brown  &  Co.,  1911)  wrote  (p.  4),  "The  distinctive  purp>ose  of 
criminal  law  would  thus  become  the  economics  of  social  defense;  but  this  for- 
mula of  the  Italian  school  should  be  amended  by  adding:  are  economics  of 
social  defense  adapted  to  the  demands  of  the  sense  of  justice  ?  " 

322 
V 


§223]     OBJECTIONS  TO  NEGATION  OF  FREE  WILL      323 

porary  ItaKan  classical  school,  especially  when  it  is  considered 
that  social  defense  can  legitimate  any  excess  of  power  on  the  part 
of  the  State  to  the  detriment  of  individual  rights,  whereas  defense 
by  law  excludes  this  possibiUty.^  (c)  At  all  events  it  is  not  social 
defense  which  is  the  base  and  soul  of  penal  justice,  but  rather  the 
defense  of  the  dominant  class. 

§223.    (A)  Objections  to  Theory  of  Defensive  Penal  Justice:  Reparation 

not  Defense. 

When  society,  in  the  capacity  of  a  person,  as  a  living  collective 
body  repels  the  attack  of  an  invading  enemy  we  have  the  case  of 
personal  defense  directly  exercised  just  as  an  individual  repels 
a  robber  on  the  highway:  strictly  speaking  the  right  of  punish- 
ment is  not  here  involved,  but  the  case  is  one  of  defensive  war. 
This  is  also  what  occurs  when  the  agents  of  public  authority 
repel  in  the  name  of  society  a  direct  aggression  against  one  or  more 
individuals:  there  again  it  is  society  that  exercises  by  delegation 
its  personal  defense  and  defends  itself  in  the  individual  attacked. 
Hence,  when  society  represses  or,  using  classical  language,  pun- 
ishes the  wrongdoer  for  a  misdeed  already  committed,  it  is  not 
defensive  in  the  strict  sense  of  the  word  but  preservative,  since 
"the  right  of  defense  (as  Romagnosi  has  already  noted)  is  but  a 
transformation  of  the  right  of  conservation,"  and  hence  is  its 
equivalent,  since  defending  oneself  means  precisely  to  obey  and 
foresee  the  necessity  of  self -preservation. ^  The  natural  evolu- 
tion of  punishment  proves  by  facts  that  penal  justice  should  have 
no  other  function  than  that  of  the  defense  or  preservation  of  the 
conditions  of  social  existence  (individual  or  collective).  It  is  error 
for  the  majority  of  criminologists  to  compare  real  defense  properly 
so-called  with  social  repression;  it  should  be  compared  with  the 
vindictive  reaction  of  the  primitive  individual  against  offenses 
already  suffered. 

Criminologists  call  this  primitive  instinct  of  vengeance  "provi- 
dential," and  many  representatives  of  the  Public  Ministry  still 
speak  of  the  social  vindication,  thus  making  unconscious  allusion 
to  the  first  origin  of  the  right  of  punishment,^  just  as  many  other 
common  expressions  remotely  recall,  as  Bagehot  says,  "the  spirit 

^  Carrara,  "Programma,"  §§611,  815.  Parte  speciale,  Intro.,  Col.  1,  p.  27, 
"Opuscoli,"  I,  261,  II,  12.  And  to  the  same  eflFect,  the  criminalists  of  the  classical 
school. 

*  Romagnosi,  "Genesi  del  diritto  penale,"  §49. 

*  Pagano,  "Principi  del  codice  penale,"  §1;   Carrara,  "Programma,"  §587. 


324  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  22S 

of  warfare  which  still  permeates  our  morals."  ^  Hence,  Stephen 
rightly  declared  that  "the  relation  of  criminal  law  to  vengeance  is 
quite  analogous  to  that  which  exists  between  marriage  and  sex 
instinct."  ^  The  individual  or  collective  reaction  against  crimi- 
nal acts,  which  offend  against  the  conditions  of  the  existence  of 
an  individual  or  of  the  collectivity,  is  nothing  but  defensive 
vengeance.  When  Ellero  writes  that  "punishment  contemplates 
future  offenders  and  not  the  one  (and  I  would  say  at  the  same 
time,  with  the  one)  that  it  strikes,"  he  confirms  the  old  adage, 
"punitur  non  quia  peccatum,  sed  ne  peccetur."'  Certainly 
social  defense  is  not  the  same  as  personal  vengeance  since  the 
latter  is  the  first  phase  of  an  evolution  terminating  in  the  latter. 
It  is  an  individual  and  transitory  act  which  becomes  a  collective 
and  permanent  function  answering  a  permanent  and  collective 
need.  Wherefore  Romagnosi  said:  " The  penal  function  is  neither 
individual  nor  temporary:  it  is  universal  and  perpetual  for  an 
entire  society."*  Moreover,  the  very  formula  "evil  for  evil,"  — 
which,  according  to  Kant,  Moniani,  Rossi,  Guizot,  de  Broglie,  and 
others,  is  the  highest  expression  of  absolute  moral  justice  and 
the  only  basis  of  the  right  to  punish,  —  is  but  a  quintessence  of 
primitive  vengeance  and  tahon.  The  acceptance  of  the  law  of 
taUon  was  a  great  advance,  but  it  has  been  left  behind  in  moral 
evolution.  "Ideal  and  absolute  morals"  may  indeed  counsel  "one 
struck  upon  the  right  cheek  to  turn  the  left";  but  the  instincts 
of  preservation,  defense  and  personal  vengeance  impose,  on  the 
contrary,  a  reaction  of  which  **an  eye  for  an  eye,  a  tooth  for  a 
tooth"  was  the  first  expression  of  what  finally  took  more  general 
and  less  material  form  in  the  equivalent  formula  of  evil  for  evil. 
To  this  gratuitous  and  hence,  really  less  moral  aflBrmation,  we  op- 
pose the  necessity  for  defensive  reaction  imposed  on  every  hving 
being  by  the  instinct  of  self-preservation.  Certainly  the  indi- 
vidual could  not  invoke  the  plea  of  self-defense  if  he  killed  a  man 
under  pretext  that  he  or  some  one  else  might  attack  him  at  a 
more  or  less  distant  future  time;  and  for  the  very  reason  that 
in  real  life  an  individual  is  not  exposed  every  day  to  attack.  It 
is,  therefore,  natural  that  he  should  wait  before  defending  him- 
self until  the  attack  actually  occurs.    And  in  waiting  he  may  take 

'  Bagehot,  "Scientific  Law  of  the  Development  of  Nations." 

*  Stephen,  "General  View  of  the  Criminal  Law  of  England"   (London,  1863), 
p.  99. 

*  Ellero,  "Opuscoli  criminale,"  132. 

*  Romagnosi,  "Genesi  del  diritto  penale,"  §  337. 


§224]  OBJECTIONS  TO  NEGATION  OF  FREE  WILL        325 

only  indirect  preventive  precautions  as  appropriate  and  effective 
for  the  individual  and  society.  Society,  on  the  contrary,  as  a  col- 
lective and  permanent  organism,  sustains  every  day  and  hour 
in  some  part  or  other  of  its  entirety  continual  criminal  aggressions 
uninterrupted  in  the  form  of  murders,  robberies,  forgeries,  rapes, 
and  arsons.^  It  may  be  said  without  exaggeration,  there- 
fore, that  for  society  aggression  is  always  existent  and  imminent 
and  that  it  really  has  this  fundamental  condition  in  legitimate 
defense  of  its  repressive  acts,  so  that  it  exercises,  in  this  respect 
let  us  again  repeat,  only  a  preservative  function  inherent  in 
every  social  organism. 

§224.    (B)  Objections  to  Theory  of  Defensive  Penal  Justice:  Social 
Protection. 

So  be  it,  the  classical  criminologists  reply;  but  do  you  not  see 
that  in  speaking  of  a  social  defense  more  or  less  impregnated  with 
a  spirit  of  vengeance,  you  expose  individuals  to  every  kind  of 
vexation  on  the  part  of  society,  which  in  the  name  of  alleged 
social  necessities  or  utilities  exaggerates  repression  and  establishes 
by  the  destruction  of  individual  human  rights  the  famous  order 
which  "  reigned  at  Warsaw"?  On  the  contrary,  they  say,  we 
speak  of  juridical  defense  or  protection  and  interpose  the  law's 
supreme  and  absolute  Umit  as  a  solid  barrier  to  all  excesses  of 
society  against  individuals.  I  fancy  that  it  is  unnecessary  to 
call  attention  to  the  fact  that  this  generous  anxiety  of  the  classi- 
cal criminologists  is  due  to  the  individualistic  current  peculiar 
to  the  nineteenth  century,  which,  reaching  the  point  of  ex- 
aggeration, continues  to  see  in  modern  society  what  the  State 
of  the  Middle  Ages  was;  namely,  the  enemy  of  the  individual. 
This  apprehension  will  more  and  more  diminish  with  the  modern 
equilibrium,  which  positive  sociology  proposes  to  establish  be- 
tween the  individual  and  society,  considered  as  the  inseparable 
and  strictly  solidary  terms  of  human  life.  I  deem  it  useless  to 
recall  with  emphasis  the  very  accurate  idea  of  Livingston  saying 
in  his  preface  to  the  project  for  a  penal  code  for  Louisiana: 
"  General  utility  is  so  intimately  connected  with  justice  that  they 
are   inseparable   in   criminal  jurisprudence,"  or,   to  put   it   dif- 

*  This  disappeared  with  the  equivocation  upon  which  it  was  founded,  the  con- 
stant objection,  "that  there  can  be  no  self-defense  against  assault  to  come,  but  only 
in  case  of  actual  aggression."  Proal,  "  Determinisme  et  penalite,"  A.  P.  (July  1, 
1890),  p.  379.  Many  others  had  said  it  before  him,  among  them  Ortolan,  "Ele- 
ments de  droit  p6nal,"  I,  §  180. 


326  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  224 

ferently,  they  are  one  and  the  same  thing.  It  seems  more  useful  to 
discuss  here  an  idea  elsewhere  expressed.  It  has  been  accepted 
by  Puglia  and  the  other  adepts  of  the  positivist  school,  thus 
confirming  an  observation  made  by  Carrara  and  repeated  by 
Cisotti:  namely,  that  frequently  formulas  "dissimilar  in  terms 
are  found  to  be  one  at  the  root."  ^  Indeed,  I  believe  that  the 
formula  —  "necessity  of  legal  defense"  —  is  really  in  accord  with 
the  facts  and  supplies  the  only  positive  justification  of  the  right 
to  punish;  but  I  also  beUeve  that  the  formula  —  "necessity  of 
social  defense  or  conservation"  —  is  not  only  the  equivalent  of 
the  first  but  is  more  exact.  The  expression  "defense  by  law" 
conceals  an  error  in  that  it  does  not  distinguish  with  precision 
rational  law,  the  entirety  of  principles  elaborated  by  thinkers 
and  jurists, —  and  positive  law,  which  is  the  social  precept,  the 
expression  of  the  wiU  of  the  legal  majority  and  of  general  needs. 
Now,  if  the  words  "defense  by  law"  mean  that  society  should 
strive  by  punishment  to  preserve  an  order,  abstract  and 
rationalistic,  then  it  is  not  the  same  thing  as  "social  defense," 
which  contemplates  the  concrete  conditions  of  social  existence. 
Still  it  is  easy  to  remark  that  such  is  not  the  real  reason  of 
the  punitive  agency:  since,  while  society,  in  formulating  its  laws, 
is  bound  to  follow  the  injunctions  of  reason  and  science;  never- 
theless, when  it  has  once  realized  in  concrete  form  a  given  legal 
command,  it  can  only  assure  the  preservation  of  that  order  as  it 
actually  exists  without  regard  to  its  conformity  with  scientific 
principles.  As  the  idea  of  law  is  not  absolute,  eternal,  and  im- 
mutable,^ but  varies  with  time  and  place  and  even  with  the 
person,  it  is  evident  that  the  sole  starting  point  for  the  scientific 
study  of  a  social  function  can  be  found  only  in  positive  law  as 
it  exists  in  a  given  society.  Consequently,  if  it  be  said  that  that 
which  gives  to  society  the  right  to  punish  is  the  necessity  of 
the  legal  system,  this  can  signify  but  one  thing,  to  wit;  that 
society  punishes  in  order  to  preserve  the  legal  system  existing 

^  Cisotti,  "II  diritto  penale,"  in  "Rivista  penale"  (1876),  p.  283.  And  yet  the 
contemporaneous  Italian  classical  school,  after  exhaustingly  analyzing  crime  as 
an  abstract  entity,  has  spent  much  time  and  ingenuity  in  discussing  whether  the 
right  of  punishment  is  "juridical  guardianship"  (Carrara),  "juridical  preserva- 
tion" (Tolomei),  or  "juridical  reintegration"  (Pessina).  This  Chinese  puzzle 
reached  its  limit  in  the  Hegelian  formula:  "Crime  is  not  law"  but  "Punishment 
18  not  crime,"  therefore,  "Pimishment  is  law"  because  "the  negation  of  a  negation 
is  a  reaffirmation." 

*  Spencer,  "Basis  of  Morality."  Hennebicg,  "Legon  d'ouverture  au  cours  de 
droit  naturel"  (Brusseb,  1896). 


§224]  OBJECTIONS  TO  NEGATION  OF  FREE  WILL        327 

at  a  given  historical  moment.  But  it  is  then  also  readily  seen  that 
maintenance  of  the  legal  system  is  the  exact  equivalent  of  mainte- 
nance of  society,  because  society  and  law  are  correlative  and  inter- 
changeable terms.  Whoever  says  law  says  society,  for  no  law  exists 
without  society  as  no  society  exists  without  law.  Law,  as  Ardigo 
has  expressed  it  (in  a  singularly  happy  phrase  which  has  been 
quoted  thousands  of  times  since  I  first  gave  it  circulation  among 
jurists),  law  is  the  specific  force  of  the  social  organism,  as  aflSnity 
is  the  specific  force  of  chemical  substances,  life  that  of  organic 
substances,  and  psychiatry  that  of  animal  substances.^  As  there 
is  no  chemical  substance  without  affinity,  organism  without  life, 
animal  without  psychiatry,  in  like  manner  there  can  be  no  society 
without  law.  If  a  man  were  alone  upon  the  earth  he  would 
encounter  no  restraint  upon  his  activity.  He  would  meet  with 
obstacles  in  other  animals  or  in  natural  forces;  but  there  could 
not  be,  and  there  is  not,  any  juridical  rule  of  conduct  between 
the  man  and  things  or  other  beings  because  there  would  be 
absolute  heterogeneity,  whether  of  natural  order  or  animal  species. 
Law  is  possible  only  to  man,  not  because  he  alone  is  endowed 
with  reason  and  free  will,  as  asserted  by  jurists  faithful  to  the 
traditional  philosophy,  but  only  because  the  species,  the  race,  is 
the  great  criterion  of  social  affinity  which  only  between  man  and 
man  can  have  a  real  social,  and  hence,  a  legal  relation.  The  soul 
of  law  is  equality,  not  only  in  the  moral  or  ideal  sense  but  also 
in  the  physical  or  organic  sense.  Indeed,  if  a  civilized  man  meets 
a  savage  of  the  lowest  development,  there  can  be  no  common  rule 
of  law;  the  enormous  organic  and  psychic  difference  separating 
their  two  races  prevents  any  reciprocal  accord  on  the  Umits 
imposed  on  their  coexistence.^  The  inferior  races,  as  Lubbock 
said,  have  no  idea  of  law,  howsoever  familiar  and  fixed  the  idea 
of  the  law  and  command  of  the  chief  of  the  tribe  may  be  among 
them.^  It  is  only  among  men  not  too  dissimilar  in  race  or 
psychic  constitution  that  a  constant  rule  of  conduct  can  be  estab- 

1  Ardigo,  "La  morale  dei  positivisti,"  p.  550;  Bardier,  "La  vie  des  Societes," 
p.  25,  says  with  less  accuracy,  "the  social  environment  is  governed  by  sociability 
as  the  chemical  environment  is  governed  by  aflBnity." 

*  This  observation  on  even  physical  equality  or  similarity  as  the  condition  of 
juridical  relations  has  been  reproduced  later  by  Tarde  in  his  eclectic  theory  of 
responsibility  founded  on  personal  identity  and  social  resemblance.  Giddings,  "The 
Principles  of  Sociology"  (New  York,  1896),  believes  that  the  specific  character- 
istic and  elementary  tie  of  society  are  nothing  but  a  "feeling  of  race." 

'  Lubbock,  "Origin  of  Civilization  and  the  Primitive  Condition  of  Man." 


328  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  224 

lished  which  will  follow  in  its  development  and  perfection  the 
successive  degrees  of  human  and  social  evolution.  Indeed,  not 
to  mention  the  animal  societies,  even  among  savages  certain  rules 
of  collective  life  are  imposed  by  the  primitive  conditions  of  exist- 
ence and  present  in  embryo  the  social  and  legal  order  that  after- 
wards spreads  and  become  compUcated  with  the  development  of 
civilization.  We  see  it  passing  from  a  simple  and  violent  resist- 
ance by  brute  force  to  a  rational  equihbrium  of  legal  rights. 

Hence,  from  the  moment  that  two  men  confront  each  other 
their  external  activity  encounters  Umits  in  their  mere  coexistence: 
the  same  tool  cannot  be  used  by  both  at  the  same  time:  the  same 
food  cannot  be  eaten  by  both.^  If  to  these  two  men  we  add  a 
third,  a  fourth,  and  so  on,  up  from  the  savage  tribe  to  the  modern 
State,  their  relations  and,  hence,  the  Hmits  of  their  individual  ac- 
tivities, wiU  increasingly  multiply  and  interlace,  and  the  juridical 
order  will  become  endlessly  complicated.  It,  too,  follows  the  uni- 
versal law  of  evolution  by  a  passage  from  the  simple  to  the  complex. 
But  whatever  may  be  the  degree  of  development  of  the  abstract 
idea  of  law  and  the  concrete  juridical  order,  the  incontestable  fact 
remains  that  there  is  no  human  association  possible  without  a 
juridical  order  and  without  limits  to  the  activity  of  its  members. 
The  experimental  and  only  possible  conception  of  law  is  the  neces- 
sary limitation  of  coexistent  activities.  Stuart  Mill  said  exactly: 
"A  right  is  a  liberty  limited  by  another  hberty,"  and  Stein  repeats 
that  the  law  "is,  abstractly  speaking,  the  hmit  between  persons  at 
every  particular  moment  of  their  actual  life."  ^  Dante  already 
defined  lawas  "hominis  ad  hominem  realis  ac  personalis  proportio  "; 
while  Kant  spoke  of  "an  universal  coercion  that  protects  the 
Uberty  of  all."  ^  Spencer  said,  "Rights  are  a  relation  of  man  to 
man,  outside  of  which  the  correspondence  between  internal  and 
external  acts,  whence  life  results,  is  impossible";  and  more  re- 
cently, justice  is  "the  liberty  of  each  limited  only  by  the  equal 
liberty  of  others."^ 

As   may   readily  be  seen,  from  this  negative  conception  of 

*  Spencer,  "Justice"  (London,  1891),  begins  his  list  of  human  rights  with  "right 
to  physical  safety"  (Chap.  XI)  and  "to  the  usage  of  natural  means"  (Chap.  XI). 

*  Stein,  "Die  Volkwirthschaftslehre,"  2d  ed.  (Vienna,  1878). 

'  Cited  by  Carle,  "La  vita  del  diritto  nei  suoi  rapporti  coUa  vita  sociale," 
p.  307.  and  2d  ed.  (1891). 

*  Spencer,  "Justice,"  p.  46  and  Ap.  A,  where  he  declares  that  he  did  not  know 
Kant's  definition  similar  to  his  own.  But  Spencer  did  not  recall  Stuart  Mill's 
definition  of  law  more  similar  still. 

V 


§224]  OBJECTIONS  TO  NEGATION  OF  FREE  WILL        329 

law  as  a  limitation  imposed  by  the  necessities  of  the  associa- 
tion of  individual  existences,  springs  the  correlative  and  in- 
separable term,  its  positivistic  conception  as  the  faculty  to  do 
and  exact  everything  that  does  not  exceed  on  our  part  the 
border  line  which  is  marked  by  the  coexistence  of  the 
others  and  which  serves  to  restrain  others  within  the  same  limit 
with  respect  to  us.^  Hence  it  follows  that  law  and  duty,  instead 
of  being  related  to  each  other  in  an  order  of  precedence  and 
preeminence  as  the  moralists  and  philosophers  of  the  law  have 
dreamed,  are  contemporaneous  and  inseparable  Uke  the  front 
and  back  of  the  same  surface,  because  they  are  determined  by  the 
inevitable  necessities  of  human  coexistence.^  Law,  besides  its 
individual  aspect  of  exterior  and  mutual  limitation  among  coexist- 
ent human  activities  and  of  the  consequent  faculty  of  acting  and 
exacting  up  to  this  Umit,  should  also  be  considered  in  its  social 
aspect,  which  is  also  double.  That  is  to  say,  that,  inasmuch  as 
the  coexistence  of  two  or  more  men  makes  a  series  of  negative 
limitations  and  positive  faculties  in  their  external  activity  neces- 
sary, it  is  evident  that  law  cannot  be  conceived  of  except  as  a 
necessary  product  and  a  specific  force  or  internal  protective 
function  of  every  social  organism. 

As  in  the  case  of  animals,  the  psyche  has  its  origin  and  func- 
tion in  the  protection  of  their  existence,  since,  to  illustrate, 
the  idiot  abandoned  to  himself  perishes  from  his  absolute 
psychic  insufficiency  to  procure  and  assure  the  conditions 
necessary  for  existence.'  So,  also,  law  has  its  origin  and 
function  in  the  protection  of  society,  which  could  not  exist 
if,  among  the  component  individuals,  in  their  relations  with  each 
other  and  with  the  collectivity,  the  sum  of  negative  rules  (limits) 
and  positive  rules  (faculties)  that  make  up  the  law  was  lacking. 
Hence  it  is  that  Ardigo's  phrase:  "Law  is  the  specific  force  of 
the  social  organism,"  should  be  supplemented  by  that  of  Ihering: 
"Law  is  the  guarantee  of  the  conditions  of  existence  of  society."  ^ 
Hence,  too,  it  is,  that  law,  both  as  an  idea  (in  philosophical  theories 

^  What  Sticker  (Vienna,  1884)  calls  the  "Physiology  of  Law"  consists  in  this: 
It  is  formed  by  the  realization  of  the  power  to  act,  a  feeling  which  man  owes  to  the 
power  of  will  over  his  muscles,  and  to  experience,  which  teaches  him  that  other  men 
have  the  same  power  and  hence  the  same  faculty. 

*  Cf.  Kowalevski,  "Les  origines  du  devoir,"  R.  I.  S.  (February,  1894). 

'  Sergi,  "Origine  e  significazione  biologica  dei  fenomeni  psichici"  (Milan, 
1885). 

*  Ihering,  "Der  Zweck  im  Recht,"  2d  ed.  (Leipsic,  1884). 


330  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  225 

and  in  public  opinion)  and  as  a  fact  (in  statutes  and  customs) 
is  neither  absolute,  eternal,  nor  immutable.  Like  language,  art, 
economics,  religion  and  morals,  it  is  a  special  product  which 
varies  with  time  and  place  according  to  the  physiological  apti- 
tudes of  each  ethnic  group  and  the  conditions  of  the  environment 
wherein  life  imfolds.  Hence  (be  it  said  parenthetically),  whereas 
this  positivistic  and  relative  way  of  considering  law  has  seemed  to 
traditional  philosophy  to  be  a  real  shock  tending  to  suppress  every 
guarantee  against  the  arbitrary  action  of  the  State  by  suppressing 
the  solid  preexisting  and  higher  authority  of  an  eternal  archtype 
of  law  (and  this  is  why  the  classical  jurists  write  Law  with  a  capi- 
tal L  as  the  Platonists  wrote  Idea  with  a  capital  I),  it  is  on  the 
contrary  the  only  way,  both  scientifically  and  in  fertihty  of  results, 
of  strengthening  the  legal  conscience  of  individuals  and  nations 
in  view  of  the  "struggle  for  law,"  wherein  Iheruig  rightly  saw 
the  first  duty  of  every  civilized  man.^  If  law  is  not  immutable, 
but  like  every  other  natural  and  social  phenomenon  follows  the 
law  of  evolution,  it  is  evident  that  just  as  it  differs  to-day  from 
the  law  of  the  past,  so  will  it  in  the  future  be  other  and  better  than 
it  now  is,  because  it  will  be  always  more  humane.  Humanity 
should  tirelessly  struggle  for  the  development  and  perfection  of 
law  instead  of  becoming  mummified  in  the  formulae  of  theorists 
or  the  codes  of  legislators. 

§  225.    Same  Subject :  Conditions  of  Existence. 

The  other  social  aspect  of  law  consists  in  the  legal  sanction 
necessarily  contained  in  it  which  is  the  only  positive  criterion  (a 
subject  much  discussed)  of  the  rules  of  morality.  In  every  social 
organism,  the  natural  conditions  of  existence  fix  the  rules  of 
conduct  which  tend  in  part  to  make  the  coexistence  of  the  asso- 
ciated Individuals  possible  and  satisfactory,  and  in  part  to  defend 
the  interests  of  the  dominant  class.  Therefore,  it  may  be  said  of 
law  viewed  under  this  social  aspect  that  its  function  is  to  main- 
tain simultaneously  social  solidarity,  and  to  provoke  inequal- 
ity. Each  of  these  rules  of  conduct,  as  we  shall  presently  see, 
has  its  own  coercive  sanction;  that  is  to  say,  they  determine  a 
corresponding  act  of  society  against  any  individual  who  infringes 
them.  It  is  only  when  a  rule  of  conduct  has  a  considerable  impor- 
tance for  the  existence  of  society  or  a  class,  that  it  is  accompanied 

^  Ihering,  "Der  Zweck  im  Recht." 


§225]  OBJECTIONS  TO  NEGATION  OF  FREE  WILL        331 

by  a  coercive  sanction,  and  thus  becomes  a  rule  of  law  and  ceases 
to  be  a  rule  of  convenience  or  morals.  Hence,  every  infraction 
of  the  rules  of  law  induces  a  sanction,  not  merely  the  reaction 
of  public  opinion  but  the  reaction  of  the  State  placing  its  power 
at  the  service  of  a  given  law,  emanating  from  social  authority. 
The  word  justice,  in  its  positive  sense,  expresses  the  sum  and  the 
general  idea  of  those  social  sanctions  which,  at  every  time  and 
place,  whether  by  custom  or  law,  but  always  with  a  coercive 
authority,  fix  and  protect  the  rules  of  law  determined  by  the 
special  conditions  of  social  existence.  A  constant  law,  however, 
rules  the  cycle  traversed,  from  birth  to  decUne,  by  every  law 
that  looks  to  the  defense  of  a  class  rather  than  to  that  of  the 
collectivity.  This  law  is  that  at  first  the  needs  of  existence 
(individual  and  social)  determine  corresponding  interests  (in  the 
individual  or  in  the  collectivity)  and  the  latter  lead  to  a  struggle 
to  transform  them  into  rights  by  assuring  them  a  coercive  sanc- 
tion. Then  rights  by  reason  of  inevitable  abuses  and  changes 
of  economic  and,  hence,  social  conditions,  degenerate  into  privi- 
leges; and  the  latter,  with  more  or  less  obstinacy  and  during  more 
or  less  time,  but  ultimately  in  vain,  oppose  the  further  social  evo- 
lution produced  by  the  conquest  of  new  rights  corresponding  to 
new  needs  and  interests  brought  about  by  the  change  of  social 
conditions.^  Direct  experience  of  these  legal  sanctions  after- 
wards transmitted  by  heredity  gives  origin  to  and  develops  a 
"legal  conscience  "  in  each  individual,  just  as  the  experience  of  the 
sanctions  of  public  opinion  and  religion  gives  birth  and  develop- 
ment to  a  "moral  conscience,"  which  to  speak  more  exactly 
should  be  called  "social  sense."  ^    It  is  therefore  from  the  theo- 

1  The  historical  struggle  of  the  middle  class  ("Tiers  fitat")  against  the  domi- 
nant classes  of  nobles  and  clergy,  determined  by  new  needs  and  interests  conse- 
quent upon  the  birth  of  manufacturing  industries  and  the  discovery  of  America, 
then  to-day  the  struggle  of  the  proletariat  for  its  rights,  that  is  to  say,  for  the 
human  right  of  all  members  of  society,  a  struggle  determined  by  the  new  needs 
and  interests  consequent  upon  great  capitalistic  industries  of  the  middle-class 
regime,  are  manifest  examples  of  this  change,  at  first  evolutive,  then  unevolutive, 
of  needs  into  interests,  rights,  and  privileges. 

^  D'Aguanno,  "Genesi  ed  evoluzione  del  diritto  civile"  (Turin,  1890),  pp.  99 
et  seq.,  holds  correctly  that  the  juridical  conscience  is  bom  spontaneously  in  a 
people  as  a  sentiment  accompanying  the  reciprocal  limitation  of  coexisting  actions. 
But  I  believe  him  wrong  in  not  believing,  in  accordance  with  the  Enghsh  view 
{Stuart  Mill,  "  Utilitarianism,"  Chap.  V;  Bain,  "The  Emotions  and  the  Will,"  P.  I., 
Chap.  XV;  Spencer,  "Principles  of  Psychology,"  pp.  152-155)  that  juridical  sanc- 
tion is  derived  from  the  affirmation  of  legal  regulations  by  the  social  power;  for 
this  is  an  undeniable  element  in  the  growth  of  the  "  consciousness  of  law."  In  this 
way  alone,  can  the  growing  predominance  of  the  psychological  element  over  and 


332  POSITIVE  THEORY  OF  PENAL  RESPONSIBHTY  [§225 

retical  and  systematic  study  of  the  negative  and  positive  norms 
of  human  activity  under  individual  and  social  aspects  that  the 
science  of  law  originates  and  grows.  It  is  metaphysical  or  posi- 
tivistic,  depending  upon  whether  it  starts  with  ideal  abstractions 
or  observation  of  facts.  And  it  follows  the  phases  of  general 
philosophy,  since,  while  the  latter  studies  the  whole  man,  the 
former  studies  an  important  part,  namely,  his  social,  external, 
juridical  life.  In  whatsoever  way  this  part  of  human  existence 
be  considered,  whether  under  the  individual  aspect  —  as  an  inevi- 
table limit  between  two  or  more  coexistent  activities  and  as  a 
corresponding  and  necessary  faculty  of  doing  and  exacting  every- 
thing that  Ues  within  this  Umit  —  or  under  the  social  aspect  —  as 
the  specific  force  of  every  social  organism  and  as  a  corresponding 
and  necessary  collective  sanction  —  at  all  events  it  remains  estab- 
lished that  society  and  law  are  convertible  and  correlative  terms. 
Hence  it  is  exactly  the  same  whether  we  say  legal  prohibition  or 
social  prohibition,  only  that  the  formula  which  speaks  of  social 
prohibition  is  more  accurate  since  it  excludes  a  possible  equivo- 
cation with  the  abstract  and  absolute  law  which  has  nothing 
in  common  with  the  punitive  agency  considered  in  its  practical 
exercise  as  a  daily  social  function. 

At  first,  punishment  was  to  avenge  offenses;  then  it  was  to 
appease  the  outraged  divinity  and  to  reestablish  the  authority  of 
the  prince  injured  by  the  offense;  then  it  was  believed  that  the 
justification  of  the  right  to  punish  lay  in  a  more  or  less  absolute 
justice  or  the  obligation  to  correct  the  criminal,  and  a  moral 
sacerdotal  character  was  attributed  to  it;  finally,  it  was  considered 
that  its  real  principle  was  the  necessity  of  maintaining  the  legal 
or  social  system. 

above  the  physical  element  of  coercion  be  explained.  See  Neukamp,  "  Das  Zwangs- 
momentim  Recht,"  in  the  "Jahrbuch  des  Intemationalen  Vereins  vergleichender 
Rechtswissenschaft"  (1889),  IV,  fasc.  I.  In  the  eyes  of  metaphysical  philosophy, 
on  the  contrary,  man  is  bom  with  a  congenital  moral  sense,  thanks  to  which,  prior 
to  and  independent  of  all  social  experience,  he  knows  what  is  just  and  what  is  im- 
just  according  to  the  eternal  and  absolute  rules  of  moral  law.  This  statement  is 
partially  true.  Every  man  has  an  hereditary  predisposition  to  feel  and  conceive  of 
the  rules  of  morals  and  law,  through  the  experience  of  past  generations,  which 
facilitate  his  being  taught  from  infancy.  But  the  hypothetical  existence  of  abso- 
lute and  eternal  norms  of  morals  and  law  must  be  looked  upon  as  chimerical  and 
untrue.  Science  renounced  them  forever  after  Locke's  triumphant  criticism  of 
innate  ideas.  As  Pascal  said,  a  meridian  is  enough  to  reverse  all  rules  of  justice. 
Patricide  is  the  most  horrible  injustice  in  Europe,  while  in  Sumatra  it  is  a  sacred 
duty.  See  for  a  criticism  of  innatism  Laviosa,  "  La  filosofia  scientifica  del  diritto  in. 
Inghilterra"  (Turin,  1897),  V.  I,  pp.  313  et  seq. 


§226]    OBJECTIONS  TO  NEGATION  OF  FREE  WILL       333 

In  any  event,  whatever  be  the  reasons  and  the  purpose  in- 
voked by  thinkers,  society  has  always  exercised  the  penal  or 
repressive  agency:  and  that  signifies  that  it  is  an  essential  con- 
dition of  the  existence  of  society.^  It  is,  after  all,  only  an 
effect  of  the  universal  law  of  conservation.  It  is,  consequently, 
a  function,  which,  gradually  eliminating  the  spirit  of  vengeance, 
penance,  and  retributive  justice,  should  now  be  reduced  to  its 
real  character  of  a  preservative  clinic  against  the  disease  of 
criminality. 

§226.  (C)  Objections  to  Theory  of  Defensive  Law:  Influence  of  the 
Dominant  Class. 

The  last  objection  to  the  idea  that  the  maintenance  of  society 
is  the  reason  for  the  penal  function  is  as  follows:  It  is  asserted 
that  the  office  of  penal  laws  has  not  hitherto  been  to  defend  society, 
that  is  to  say,  all  the  groups  that  compose  it,  but  to  protect 
peculiarly  the  interests  of  those  in  whose  favor  the  pohtical 
power  is  constituted,  namely,  the  minority.^  In  this  connec- 
tion I  have  always  said  that  "defense  of  society"  is  equivalent 
to  the  defense  of  the  concrete  juridical  order.  While  it  is 
undeniable  that  in  this  concrete  order,  at  each  historical  epoch 
the  interests  of  the  dominant  classes  prevail,  it  is  also  indis- 
putable that  civilization  evolves  in  the  direction  of  gradually 
effacing  and  attenuating  in  social  law  the  most  clean-cut 
inequalities  between  the  dominant  and  the  subject  classes. 
There  was  first  a  struggle,  and  a  victorious  struggle,  to 
abolish    civil    inequality    (masters   and    slaves),    then    rehgious 

1  Carrara,  " Programma,"  §612,  wrote,  "It  is  not  society  which  gives  rise  to 
the  right  to  punish,  but  the  necessity  of  punishing  the  violators  of  rights,  which 
makes  civil  society."  Without  considering  this  as  a  return  to  the  theory  of  social 
contract,  it  is  strange  to  imagine  (I),  "that  law  existed  before  civil  society,"  for  if 
there  were  no  society,  where  and  how  would  law  be  clothed?  In  "mente  Dei," 
perhaps,  but  not  among  men.  (II),  That  civil  society  was  formed  to  punish  wrong- 
doers. Civil  society  was  formed  in  the  first  place,  because  man,  like  every  other 
animal,  cannot  live  in  isolation;  but  besides,  for  other  reasons  and  objects  more 
noble  and  fertile  than  that  of  punishing  wrongdoers,  as  if  it  were  only  "a  mental 
insurance  company  against  crime."  This  confirmed  me  in  my  opinion  that  if  Car- 
rara was  a  theoretical  and  practical  anatomist  of  crime,  as  juridical  entities,  he 
was  not  as  great  a  jurist,  psychologist,  and  sociologist. 

*  Vaccaro,  "Genesi  e  funzione  delle  leggi  penali,"  p.  101;  Loria,  "I  basi  eco- 
nomiche  della  costituzione  sociale";  Stein,  "Die  Gesellschaftslehre,"  pp.  56-73; 
"Gegenwart  und  Zukunft  der  Rechts-  und  Staatswissenschaft,"  II,  4,  III;  Ihering, 
"Der  Zweck  im  Recht,"  Chap.  8,  §2;  Gumplowicz,  "Grundriss  der  Sociologie" 
(Vienna,  1885),  pp.  189  el  seq.,  where  he  said,  "the  true  principle,  the  life  of  all 
law,  is  inequaUty." 


334  POSITIVE  THEORY  OP  PENAL  RESPONSIBILITY  [§  227 

inequality  (orthodox  and  heretic),  then  political  inequality 
(struggle  of  the  third  estate,  or  bourgeoisie,  against  the  aris- 
tocracy and  clergy),  and  now  there  is  the  struggle  to  abolish 
economic  inequality  (proletariat  and  bourgeoisie)  as  I  have 
elsewhere  very  fully  explained.^  Therefore,  this  objection  has 
nothing  conclusive  against  the  solution  given  by  the  positive 
school  for  the  problem  of  responsibility  and  penal  justice.  While 
this  objection  has  no  value  to  impair  the  scope  and  basis  of  our 
theory  that  the  defense  and  preservation  of  society  is  the  sole 
positive  reason  for  penal  justice,  it  serves,  however,  to  make 
precise  its  Umit  and  tendencies  when  one  combines  the  idea  of 
defense  of  society  with  the  idea  of  defense  of  class,  as  I  have 
recently  done. 

§  227.    Scientific  Socialism. 

When  the  positivists,  having  insisted  from  the  beginning,  as 
was  necessary,  on  the  constitution  and  importance  of  the  anthro- 
pological factor  in  the  natural  genesis  of  crime,  had  turned  their 
attention  to  the  social  influences  which  act  upon  criminality  and 
their  relations  with  penal  justice,^  there  happened  in  Italy  and 
in  other  countries,  politico-social  events  (anarchistic  attempts, 
the  Panama  scandals  and  their  relative  impunity,  popular  move- 
ments in  Sicily  and  Lunigiane  and  their  repression  by  martial 
law  and  military  tribunals,  occurrences  repeated  in  1898)  which 
placed  the  most  secret  ravages  of  the  penal  mechanism  under 
a  magnifying  glass.'  Then  it  was  that,  having  devoted  myself 
after  the  third  Italian  edition  of  the  present  work  (1892)  to 
the  study  of  the  Marxian  theory  as  a  sociological  doctrine,  on  the 
one  hand,  I  reached  the  conclusion  that  scientific  socialism  is  the 
logical  and  inevitable  conclusion  of  sociology,  which  otherwise 
must  remain  sterile  and  impotent.*  On  the  other  hand,  I  came 
to  distinguish  in  criminality  two  great  categories  of  facts  dif- 

*  Ferri,  "Socialismo  e  scienza  positiva,"  2d  ed.  (Palermo,  1900). 

*  This  is  what  I  have  always  done  from  the  beginning,  with  the  classification 
of  anthropological,  physical,  and  social  factors  of  criminality,  and  then  with  the 
bio-sociological  classification  of  criminals. 

'  In  sociology,  there  are  always  illuminating  facts,  which  lay  bare  the  faults 
and  spirit  of  institutions.  Thus  the  Dreyfus  trial  illuminated,  like  a  searchlight, 
the  faults  and  spirit  of  military  justice  (the  slave  of  militarism,  the  ally  of  clerical- 
ism) in  opposition  to  civil  justice  as  shoA^Ti  by  the  same  case  in  the  Court  of  Cas- 
sation. The  abuses  and  judicial  errors  of  military  justice  were  and  are  a  daily 
phenomenon,  but  the  outcry  caused  by  the  Dreyfus  case  was  necessary  to  obtain 
evidence. 

*  Ferri,  "Socialismo  e  scienza  positiva." 


§228]   OBJECTIONS  TO  NEGATION  OF  FREE  WILL       335 

ferent  in  their  character,  motives,  and  consequences,  and  to 
distinguish  two  motives  in  the  penal  function  more  or  less  in  an- 
tagonism, and  one  or  the  other  more  or  less  dominant  according 
to  the  different  forms  of  criminality  to  be  repressed.^ 

§  228.   Two  Forms  of  Criminality. 

There  exists  an  atavistic  and  an  evolutive  criminality.  The 
first  is  the  common  criminaUty  such  as  is  shown  in  the  muscular 
and  atavistic  form,  strictly  speaking,  or  the  spurious  form,  a  form 
modern  and  modified  by  evolution.  The  second  is  the  politico- 
social  criminaUty  which,  under  one  or  the  other  of  the  two 
forms,  tends  (in  a  more  or  less  illusory  way)  to  hasten  the  future 
phases  of  politico-social  life.'^  Thus  the  distinction  between  ata- 
vistic and  evolutive  crimiaality,  which  has  above  all  a  psycho- 
logico-social  base  (in  the  sense  of  its  determinant  motives),  is  more 
compUcated  in  real  life,  either  in  form  of  execution  which  may  be 
atavistic  in  evolutive  criminality  and  vice  versa,  or  in  the  anthro- 
pological category  of  the  criminals.  Indeed,  criminaUty  in  the  most 
characteristic  form  (muscular)  will  be  found  generally  among  born, 
habitual,  or  insane  criminals :  and  when  it  is  present  in  occasional 
criminals  or  criminals  by  passion,  it  will,  as  a  rule,  take  on  the 
less  serious  forms  of  violence  and  fraud.  And  with  greater  cer- 
tainty, evolutive  criminaUty  will  be,  for  the  most  part,  the  work 
of  pseudo-criminals,  or  normal  men  (for  the  forms  of  pure  politico- 
social  heterodoxy),  or  of  criminals  by  passion  (through  fanaticism 
Uke  Orsini  and  Caserio),  or  of  occasional  (chance)  criminals  (especi- 
ally in  coUective  crimes  and  crimes  of  mobs);  although  it,  too, 
may  by  way  of  exception  be  the  work  of  born-criminals  (as  for 
example,  Ravachol),  or  of  insane  criminals  (Passanante).^ 

1  Ferri,  "Delinquenti  ed  onesti,"  S.  P.  (June,  1896);  "Temperamento  e  crimi* 
nalita"  (a  report  to  the  criminal  anthropological  congress  at  Geneva),  A.  C.  A.  C. 
(Geneva,  1897),  p.  86,  and  in  the  "Scuola  positiva"  (August,  1896);  "La  justice 
penale,"  resume  of  the  course  in  criminal  sociology  at  Brussels  (1898).  On  this 
resume,  see  Cruppi,  "Les  idees  de  M.  E.  Ferri  sur  la  justice  p^nale,"  in  the  "Revue 
bleue"  (3  December,  1898);  Richard,  in  the  "Annee  sociologique"  (Paris,  1898), 
I,  p.  455  (1899),  II,  p.  413;  in  the  "Revue  philosophique"  (December,  1898); 
DeQiiiros,  in  the  "  Ri vista  generale  di  legislacione  y  jurisprudenza  "  (January,  1899). 

*  The  terms  atavic  and  evolutive  criminaUty  are  not  used  in  the  sense  of  violent 
and  material  and  fraudulent  and  intellectual  given  them  by  Sighele  and  Ferrero, 
who  were  the  first  to  use  them. 

'  From  this  point  of  view,  brigandage  is  one  of  the  most  characteristic  phe- 
nomena. It  can  be  evolutive  (with  motives  either  political  or  of  social  protesta- 
tion as  in  the  case  of  Karl  Moor,  described  in  "Die  Rauber,"  by  Schiller)  or  atavic 
(determined  by  vengeance,  ferocity,  or  cupidity).    It  may  take  light  forms  of  vio- 


336  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  229 

The  practical  problems  of  the  measures  to  be  taken  against 
the  authors  of  a  given  crime  can  only  be  solved  by  the  simulta- 
neous appUcation  of  various  bio-social  criteria,  as  we  shall  see 
later,  that  is  to  say,  criteria  of  the  conditions  of  the  act,  the 
agent,  and  society,  according  to  the  right  invaded,  and  determin- 
ing motives,  and  the  anthrop>ological  category  of  the  criminal. 

§  229.    Distinction  Between  Two  Fonns  of  Criminality. 

In  the  meantime,  in  regard  to  the  present  question,  the  conclu- 
sion is  that  in  all  these  criminal  phenomena  there  is  always  a  ma- 
terial menace  or  an  effective  violation  of  the  actual  conditions  of 
existence  of  the  individual  (in  his  bio-personaUty)  or  of  society  (in 
its  concrete  historical  composition).  But  that  which  essentially 
separates  the  former  from  the  latter,  aside  from  the  different  mor- 
phology of  violence  or  of  fraud,  is  in  the  motives  controlling  the 
author  of  the  deed,  whether  of  selfish  and  anti-social  interests  or  of 
altruistic  and  social  interest,  whence  it  follows  that  it  is  an  uni- 
versal interest  to  be  defended  against  atavistic  criminaUty,  while 
in  evolutive  criminaUty  the  interest  is  restricted  to  the  minority 
of  the  dominant  classes. 

To  this  distinction  between  atavistic  or  anti-human  and  evolu- 
tive or  (strictly)  anti-social  criminality  there  is  the  corresponding 
distinction  between  defense  of  society  and  defense  of  class  which 
may  degenerate  into  class  tyranny.^  The  ideas  of  "defense  of 
society"  and  "defense  of  class"  are  each  incomplete.  The  synthesis 
that  consolidates  them  is  that  the  penal  function  whereby  the 
State  holds  the  individual  responsible  for  crime  committed  by  him  is 
the  expression  and  effect  of  a  twofold  natural  necessity:  on  the  one 
hand  to  preserve  the  whole  collectivity  from  anti-human  forms  of 
criminaUty  and  on  the  other  hand  to  defend  a  part  of  the  coUectiv- 
ity,  the  dominant  class.  This  preservation  and  this  defense  will 
prevail  differently  according  as  the  criminaUty  may  be  atavistic  or 

lence  or  abuse  (threatening  letters  or  personal  restraint)  or  consist  in  atrocities  (of 
cruelty,  cannibalism,  etc.)-  It  is  found  in  occasional  criminals  and  those  of  pas- 
sion (who  become  bandits  after  a  murder  caused  by  jealousy  and  spite)  as  well  as 
in  habitual  and  congenital  criminals.  This  explains  the  fascination  exercised  by 
brigand-chiefs. 

1  Many  ties  between  civil  law  and  the  dominant  class  can  be  given,  about  which 
so  much  has  been  written.  Menger,  "Le  droit  civil  et  le  proletariat"  (1889). 
Spencer  recognized  this,  "History  has  shown  in  an  irrefutable  manner  that  those 
who  have  the  power  use  it  to  their  own  advantage."    "Justice,"  §  106. 


§229]  OBJECTIONS  TO  NEGATION  OF  FREE  WILL        337 

evolutive;  in  the  first  case  attacking  the  inherent  conditions  of 
human  existence,  and  in  the  second,  the  poUtico-social  order, 
which  is  always  historically  transitory.^  This  synthesis  clearly 
distinguishes  the  part  in  penal  justice  which  concerns  the  transi- 
tory interests  of  the  dominant  class  and  the  part  which  touches 
the  imprescriptible  necessities  of  individual  and  social  defense 
against  the  disease  of  criminality,  which  is  analogous  to  the  other 
diseases  threatening  human  existence.  Furthermore,  by  virtue 
of  this  synthesis  the  positivist  criminal  school  is  entitled  to  give  a 
wider,  more  complete,  and  more  efficacious  meaning  to  the  formula 
of  social  defense.  In  the  actual  state  of  society,  defense  of  society 
should  be  understood  to  mean  not  only  the  protection  of  the  whole 
collectivity  against  the  attacks  of  atavistic  criminality  but  also  the 
defense  of  the  dominant  class  against  the  assaults  of  evolutive 
criminality,  while  the  State  should  be  defended  against  evolutive 
criminality  differently  than  against  atavistic  criminahty.^  But  in 
the  future  of  "penal  justice,"  on  the  contrary,  science  must  indi- 
cate and  impose  an  ever-growing  and  ultimately  exclusive  pre- 
dominance of  the  permanent  and  common  interests  of  the  entire 
collectivity,  if  not  altogether  eUminating,  at  least  reducing  to  the 
minimum  the  part  which  concerns  class  interests  and  privileges, 
thus  changing  penal  justice  from  a  mechanism  of  political  domina- 
tion into  a  preservative  social  clinic'  And,  to  make  use  of  the 
former  words  in  the  new  meaning  that  they  contain,  the  theory 
which  regards  social  defense  as  the  basis  of  the  punitive  function 
still  corresponds,  thanks  to  the  above-mentioned  synthesis,  to  the 
positive  and  actual  conditions  of  contemporaneous  society:    but  it 

^  This  Marxist  doctrine  on  the  interest  and  privilege  of  the  dominant  class 
explains  the  reasons  and  excesses  in  the  repression  of  political  and  social  crimes 
as  the  misoneistic  theory  of  Lombroso  shows  the  social  and  personal  growth  of 
political  crime.  Each  is  completed  by  the  other,  and  both  theories  together  give 
a  true  representation  of  the  fact. 

*  Then,  on  the  other  hand,  personal  or  collective  egotism,  doubled  by  fear  often 
simulated  but  largely  sincere,  is  frequently  the  cause  of  excesses  in  defensive  reac- 
tion. So  we  see  that  evolutive  criminality  is  often,  not  only  in  exceptional  laws 
but  in  ordinary  statutes,  pimished  more  severely  than  atavism. 

*  An  analogous  solution  must  be  given  to  the  social  function  of  religion.  Kidd, 
in  "Social  Evolution"  (London,  1895),  openly  states  that  the  duty  of  religion  is  to 
moderate  and  repress  individual  activities  in  conflict  with  social  interests  (those  of 
the  dominant  class).  Loria,  among  others  replied,  "La  theorie  sociologique  de 
M.  Kidd,"  R.  I.  S.  (July,  1899),  that  not  only  is  religion  thus  demoted  into  an  ally 
of  the  policeman  (that  is  to  say  of  the  district-attorney,  in  that  it  protects  the 
interests  of  the  ruling  class)  but  such  a  theory  makes  it  disappear  when  a  more 
advanced  economy  will  have  done  away  with  class  antagonism. 


338  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  229 

nevertheless  remains  the  object  and  criterion  of  future  modifica- 
tions, inevitable,  and  already  on  foot,  which  are  changing  penal 
justice  by  making  it  conform  to  the  data  supplied  by  anthropol- 
ogy and  sociology  on  the  causes  and,  hence,  on  the  remedies 
against  criminality. 


CHAPTER  IV 

PRESENT   FORMS   OF   DEFENSIVE   REACTION 

Theory  of  natural  sanction.     Physical,  biological,  social.     Man  is  responsible  for 
his  acts,  because  he  lives  in  society. 

§  230.    Punishment  not  Based  on  Moral  Responsibility. 

The  refutation  of  these  objections  facilitates  the  establishment 
and  definition  of  the  first  and  less  heterodox  part  of  our  general 
conclusion;  viz.:  that  the  punitive  agency  is  a  pure  and  simple 
function  of  the  defense  of  society.  There  remains  the  second 
part,  which  belongs  properly  to  the  positivist  school,  viz.:  the 
complete  withdrawal  from  the  punitive  agency  of  every  crite- 
rion of  responsibihty  or  moral  culpability  and  substituting  a 
more  positive  criterion  which  at  all  events  cannot  be  contested 
solely  on  account  of  diflFerences  of  religious  or  philosophical  be- 
liefs or  mental  habits. 

This  part,  peculiar  to  the  positivist  school  and  outlined  in 
my  essay  "sul  diritto  di  punire  come  funzione  sociale,"  is 
to-day  accepted  by  other  positivists  and  by  some  eclectics.  It 
has  since  acquired  citizenship  in  the  scientific  world  and  retains 
its  essential  lines  intact.  Yet  to  anticipate  verbal  misapprehen- 
sions whereon  certain  opponents  base  all  their  criticisms,^  it  is 
well  first  of  all  to  give  precision  to  the  terms  of  the  problem  and 
especially  to  these  terms,  viz.:  imputabihty,  culpabiUty,  re- 
sponsibility, punishability,  and  the  like.  The  two  extreme  op- 
posite points  of  the  question  are:  an  offense  by  an  individual 
and  a  punishment  provided  by  the  law-giver  and  applied  by  a 
judge.  The  whole  problem  consists  in  determining  the  con- 
ditions by  which  these  two  points  can  be  brought  together. 

§  231.    Punishment  Requires  Physical  Imputability. 

The  first  obvious  condition  is  that  the  delict  shall  have  been 
committed  by  the  man  placed  on  trial.  In  other  words,  there  is 
first  of  all  necessary  physical  imputability  which  makes  it  possi- 

1  "Actes  du  2*me  Congres"  (Paris,  1890),  p.  360. 
S39 


340  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  232 

ble  to  impute  materially  any  given  physical  or  muscular  act 
to  the  man  who  has  committed  it  because  there  is  always 
something  of  this  nature  even  in  what  is  called  moral  partici- 
pation of  an  accomplice,  such  as  the  instigator  of  the  crime  or 
he  who  has  ordered  it.  The  act  must  be  his.  And  hence  it  is 
that  the  essential  and  fundamental  point  of  first  condition  in 
the  practical  administration  of  criminal  law  is  material  evidence, 
direct  or  indirect,  establishing,  first,  that  the  crime  has  been 
committed;  second,  that  it  has  been  committed  by  the  person 
on  trial,  and  hence,  that  it  is  his  act.  To  meet  this  second 
requirement,  it  is  further  necessary,  apart  from  the  fact  that  it 
was  materially  executed  by  him,  that  there  was  present  in  him 
the  last  phase  (external  or  muscular)  of  a  physio-psychological 
process  psychically  free,  such  as  I  have  sketched  above 
in  the  discussion  of  free  choice.  One  who  under  coercion  of 
another  commits  or  omits  an  act  that  he  should  not  or  should 
have  performed  is  but  an  instrument.  The  real  author  is  he 
who  coerced  him  to  commit  or  omit  it:  as  Wallaston  says:  "He 
does  not  act  but  is  acted  upon."  Consequently,  in  such  cases  the 
materially  coerced  doer  of  a  wrongful  act  is  neither  responsible  nor 
punishable,  not  because  he  did  not  "freely  will  it"  nor  even 
because  he  has  not  "willed"  it  at  all  (as  I  will  say  presently  in 
connection  with  the  eclectic  theory  on  what  is  "voluntary"), 
but  solely  because  he  is  not  the  author,  and  hence  the  crime  is 
not  his  crime  and  is  not  the  index  and  effect  of  his  personaUty  and 
his  personal  manner  of  reacting  against  environment. 

§  232.    Legal  Responsibility. 

Assuming  that  it  has  been  established  that  the  crime  has  really 
been  committed  by  the  accused,  that  there  was  present  his  personal 
and  physically -free  mode  of  reaction  against  the  external  environ- 
ment, that  is,  assuming  physical  imputability,  does  this  connection 
of  physio-psychological  causality  between  the  act  and  the  agent 
suffice  to  make  him  punishable?  Does  it  cause  political  imputa- 
bility or  punishability  or  moral  responsibility,  for  these  words  are 
synonymous?  That  is  the  whole  question.  The  classical  school  has 
always  maintained,  and  still  maintains,  that  to  identify  political 
imputability  or  penal  responsibility  with  physical  imputability 
there  must  further  intervene,  as  an  intermediate  term  or  essential 
condition,  moral  imputability,  or  responsibility,  or  culpability, 
all  of  which  are  the  same  thing.     This  moral  responsibility  is 


§233]  PRESENT  FORMS  OF  DEFENSIVE  REACTION       341 

based  on  two  conditions:  free  will  and  normal  intelligence  (or 
conscience)  in  the  author  of  the  crime.  The  positivist  school,  on 
the  contrary,  maintains  that  as  there  is  no  free  choice  or  free 
will,  neither  is  there  responsibihty,  culpability,  or  moral  imputa- 
biUty:  and  this  does  not  involve  as  a  consequence  that  there 
should  also  disappear  all  poUtical  imputability  or  penal  accounta- 
biUty  of  the  wrongdoer.  It  maintains  quite  the  reverse  (and 
this  is  its  radical  innovation),  that  physical  imputabihty  of  crime 
is  sufficient  to  constitute  penal  accoimtability,  it  being  naturally 
at  Uberty  to  seek  other  objective  and  subjective  conditions  to 
adapt  the  practical  forms  of  penalty  or  defense  of  society,  to  the 
different  categories  of  criminals  and  of  crimes,  as  I  shall  explain. 

§  233.    Objection  that  New  Penology  is  Not  Based  on  Right. 

Certain  eclectic  theories  were  suggested  midway  between  these 
two  views,  after  the  second  edition  of  this  work.  I  shall  not  touch 
on  them  till  later.  The  eclectic  theories  all  agree  in  considering  the 
condition  of  moral  responsibility  necessary  in  order  that  punish- 
ability should  be  identified  with  physical  imputabihty,  and  pun- 
ishment with  crime,  while  they  vary  the  criteria  of  this  moral 
responsibihty,  considered  as  so  indispensable  and  which  they  under- 
take to  estabhsh  outside  of  the  criterion  of  an  "absolute  free 
choice,"  whereon  the  pure  classical  doctrine  rests.  Whatever 
theory  be  accepted,  these  words  —  imputability  and  responsibility 
—  are  equivalent  and  change  their  meaning  only  with  the  adjec- 
tive qualifying  them,  becoming  physical,  moral,  or  penal  responsi- 
bility and  imputability  as  they  may  be  used.^  This  second 
part  of  the  problem,  the  independence  of  penal  accountability 
from  moral  responsibility,  was  first  outlined  by  me  in  the  essay 
"sur  le  droit  de  punir  comme  fonction  sociale"  and  later  de- 
veloped in  the  second  edition  of  this  book  in  response  not  only 
to  the  flattering  solicitations  of  a  kindly  critic,^  but  also  in  reply 
to  another  oft-repeated  objection  made  by  persons  not  very  fa- 
miliar with  the  new  order  of  ideas  introduced  by  modern  sociology. 
They  claim  that  the  penal  agency  should  be  reduced  to  a  mere 
"defensive  mechanism"  devoid  of  any  higher  norm  of  right  and 
"should  sanction  the  prohibition  of  harmless  acts  under  pretext 

^  The  phrases  juridical  or  legal  responsibility  are  more  generally  used  when 
the  social  reaction  against  individual  action  does  not  entail  restraint  but  only  legal, 
civil,  political,  or  administrative  disability. 

*  Paulham,  "Analyse  des  Nuovi  Orizzonti,"  R.  P.  (November,  1881),  p.  533. 


S42  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  234 

of  public  utility  in  conceding  to  social  authority  the  tyranny  of 
arbitrary  power."  ^  "The  innocent  and  the  guilty  might  be  stricken 
indifferently  if  the  death  of  the  former  should  be  considered  as 
useful  as  that  of  the  latter."  *  This  objection  is  refuted  by 
both  history  and  logic.  It  is  refuted  by  history,  for  in  the  words 
of  Girardin:'  "What  is  history  if  not  the  bloody  martyrdom 
of  a  numberless  multitude  of  victims  immolated  by  ignorance, 
superstition,  and  cruelty,  armed  with  the  right  to  punish,"  even 
when  jurists  spoke,  as  they  still  speak,  of  justice  and  the  divine 
mission,  or  even  the  supreme  and  absolute  norms  of  law?  It 
is  refuted  by  logic,  because  (aside  from  the  fact  that  such  an 
objection  has  the  serious  defect  of  proving  too  much)  when  science 
has  given  its  rules  (according  to  our  opponents,  rules  of  eternal 
and  absolute  justice;  according  to  us,  rules  of  social  and  relative 
justice)  its  task  is  complete.  Either  social  power,  the  executive 
organ  of  the  social  function,  follows  the  rules  of  science  and  then 
the  "arbitrary"  disappears;  or  it  does  not  follow  them,  and  then 
we  say  that  the  abuse  of  a  principle  never  proves  its  falsity. 
Science  has  only  to  take  cognizance  of  such  abuse  in  order  to  end 
it,  or  at  least  by  pointing  out  its  existence,  to  facilitate  the  struggle 
for  better  law  from  which  every  social  and  legal  reform  is  born. 

§  234.    Positivistic  Basis  of  Penal  Law. 

These  are  the  rules  of  legal  and  social  life  in  all  that  concerns 
the  preservation  of  order,  which  the  positivist  school  strives  to 
establish  in  extracting  them,  no  longer  from  subjective  and  "a 
priori"  principles  but  from  the  daily  observation  of  facts.  We 
have  expounded  above  this  observation  of  facts  in  reference  to 
the  succession  in  time,  in  studying  the  natural  evolution  of  the 
defensive  reaction  against  acts  harmful  to  the  individual  or  society; 
we  must  now  complete  it  in  relation  to  present  existence  in  actual 
society  by  studying  some  facts  so  common  and  characteristic 
that  they  have  hitherto  been  neglected  by  criminologists.  From 
the  planetary  equilibrium  to  the  crystallization  of  minerals,  from 
the  first  beginning  of  organized  and  living  matter  to  the  indi- 
vidual existence  of  animals  and  man,  from  the  social  relations  of  a 
zoophyte  with  its  colony  to  those  of  man  with  the  society  of  which 
he  is  part,  life  is  always  and  everywhere  an  incessant,  inexorable 

*  Carrara,  "Programma"  P.  gen.,  last  edition  (1886),  I,  42. 

*  Franck,  "Philosophic  du  droit  penal"  (Paris,  1880),  p.  18. 

*  Girardin,  "Du  droit  de  punir,"  pp.  33,  174. 


§235]  PRESENT  FORMS  OF  DEFENSIVE  REACTION       343 

succession  of  actions  and  reactions.  Even  restricting  it  to  living 
beings,  especially  animals  and  man,  the  concept  of  sanction  rules, 
which  is  equivalent  to  that  of  reaction.  Since  man  is  at  the 
last  stages  of  the  grand  pageant  of  life,  he  is  primarily  subject  to 
the  same  sanctions  as  the  inferior  orders  in  nature,  sanctions  com- 
mon to  him  and  every  other  portion  of  matter.  Then  he  passes 
under  the  sanctions  of  a  higher  order  which  is  not  pecuhar  to  him 
exclusively,  but  is  shared  by  the  higher  animals,  although  only 
in  him  is  it  found  in  the  much  higher  and  more  complicated  degree 
viz.:  the  social  order.  Precisely  because  there  is  a  distinction  in 
nature  between  physical  and  biological  and  social  orders,  there 
are  also  three  great  classes  of  reactions  or  corresponding  sanctions, 
—  physical,  biological,  social.^ 

§  235.    Physical,  Biological,  and  Social  Sanctions. 

The  man  or  animal  that,  even  unconsciously,  involuntarily, 
or  by  constraint,  violates  the  laws  of  nature,  finds  in  nature 
itself  an  irresistible  reaction  or  sanction.  He  who  leans  too  far 
out  of  a  window,  even  with  the  most  moral  or  benevolent  intention, 
falls.  This  is  the  physical  sanction.  Whoever  eats  too  much, 
gets  indigestion,  becomes  ill  and  suffers;  whoever  abuses  his 
organism,  whether  in  its  physiological  or  psychological  func- 
tions, flies  in  the  face  of  a  multitude  of  suffering,  and  often  ruins 
his  physiological  or  intellectual  health.  This  is  the  biological 
sanction.  A  passer-by  who  in  his  absentmindedness  and  without 
intent  to  injure,  jostles  another,  evokes  in  the  latter  a  reaction 
either  in  words  or  acts.  If  he  protests  that  he  had  no  wrong 
intentions,  the  reaction  is  less  lively,  but  not  absent;  a  less  favor- 
able opinion  of  him  will  remain;  so  that  if  his  distractions  are 
habitual  the  opinion  will  spread  and  there  will  grow  up  about 
him  an  isolating  atmosphere,  causing  him  continual  hmniUation, 

*  Guyau,  "Critique  de  I'idee  de  sanction,"  R.  P.  (March,  1883);  "Esquisse  d'une 
morale  sans  obligation  ni  sanction"  (Paris,  1885),  Bk.  Ill,  distinguishes  the  fol- 
lowing kinds  of  punishment  viz.:  natural,  moral,  social,  internal,  reUgious  sanctions, 
and  those  of  love  and  fraternal  feeling,  and  he  reaches  this  easy  conclusion  that 
"punishment  becomes  an  entirely  human  idea."  He  adds,  however,  that  sanctions 
must  cease  to  be  chastisement  for  evil  done  to  become  loving  rewards  for  good.  It 
must  change  its  quality  of  punishability  to  amiability.  This  latter  idea,  which  is 
also  that  of  Fouill^e,  seems  incomplete,  because  either  it  is  relative  and  means  that 
fraternal  cooperation  accompanies  repression  from  the  very  beginning  to  the  de- 
velopment of  civilized  life,  in  which  case  the  theory  is  excellent  but  a  little  too 
new;  or  else  it  is  absolute,  and  then  it  presupposes  the  disappearance  of  evil  from 
the  human  world. 


344  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  236 

not  to  mention  damages  to  which  he  may  be  submitted.  The 
same  is  true  of  him  who  is  slanderous,  ignorant,  proud,  or  avari- 
cious. A  merchant  who  not  by  his  own  bad  faith  but  through  the 
abuse  of  his  confidence  by  others  suffers  reverses  and  becomes 
bankrupt,  a  man  who  with  honest  initiative  strives  to  open  up  a 
new  source  of  wealth  but  fails,  falls  into  misery  and  neglect.  He 
who  in  good  faith  executes  an  act  contrary  to  law  sees  this  act 
annulled  and  must,  to  his  prejudice,  submit  to  all  of  the  conse- 
quences of  such  nullity.  He  who  causes  an  unintentional  injury 
to  another  even  without  personal  participation,  as  by  the  act  of 
his  son,  servant,  or  animal,  is  required  to  pay  the  damage.  A 
poor  madman  who  attacks  a  passer-by,  it  may  be  with  the  insane 
idea  of  doing  good,  is  wounded,  perhaps  killed.  His  mere  inof- 
fensive but  noisy  appearance  on  the  streets  is  ground  enough  to 
deprive  him  of  his  Uberty  and  lock  him  up  in  an  asylum.  A  cab- 
man who  without  malice  or  intent  injures  or  kills  a  pedestrian  is 
sentenced  to  an  imprisonment  which  may  cause  his  material  and 
moral  ruin. 

§  236.    Kinds  of  Social  Sanctions:  Coercive. 

These  are  so  many  forms  of  social  sanction:  examples  of  them 
could  be  multiplied,  and  they  can  be  grouped  in  the  following 
genera  of  social  (coercive)  sanctions:  pubUc  opinion — eco- 
nomic consequences  —  mdlity  of  acts  performed  —  reparation 
in  damages  —  violence  inflicted  (either  by  self-defense  or  adminis- 
trative measure).  The  positivist  reason  for  these  sanctions,  vary- 
ing in  form  and  intensity  with  the  different  acts  which  induce 
them,  consists,  as  Holmes  observes,  in  this,  that  "men  live  in 
society  and  this  makes  necessary  a  certain  average  conduct,  a 
sacrifice  of  peculiarities  exceeding  a  given  limit.  If  a  man  be  born 
irrascible  and  awkward  and  continual  accidents  befall  him  as  a  con- 
sequence so  that  he  suffers  and  causes  his  neighbor  to  suffer,  his 
innate  defects  will  find  excuse  before  the  celestial  tribunal,  but 
here  below  his  blunders  are  no  less  disagreeable  to  his  fellows 
than  if  they  were  intentional  or  negligent  misdeeds.  They  are, 
therefore,  right  in  demanding  that  at  his  own  risk  and  peril  he 
place  himself  on  their  level  and  the  courts  established  by  them 
are  right  in  not  taking  into  account  his  personal  pecuUarities."  ^ 

*  Holmes,  "The  Common  Law." 


§  239]  PRESENT  FORMS  OF  DEFENSIVE  REACTION       345 

§  237.    The  Essential  Quality  Common  to  All  Forms  of  Social  Sanction. 

Now,  what  is  common,  and  therefore  constant  and  essential,  to 
all  these  infinitely  varied  forms  of  reaction  and  social  sanction 
for  them  to  appear  in  the  domain  of  customs  and  conventionali- 
ties and  have  a  social  sanction  is  this  simple  but  very  impor- 
tant fact,  that  the  sanction  itself  is  always  independent  of  the 
will  and  moral  culpability  of  the  individual.  This  mark,  it  should 
be  observed,  is  also  perfectly  common  and  constant  in  the  other 
categories  of  natural  sanctions,  the  physical  and  biological. 

§  238.     The  Essential  Quality  Common  to  All  Forms  of  Remimerative 
Social  Sanction. 

When  we  proceed  from  the  forms  of  coercive  sanction  to  the 
forms  of  remunerative  sanction  (for  these  will  not  cease  to  grow 
in  importance  in  the  social  life  of  the  future,  in  proportion  as  the 
present  fetishism  of  punishment  becomes  weaker,  a  fetishism 
in  the  family,  in  the  schools,  and  in  society  that  thinks  only  of 
repression  in  directing  the  conduct  of  men),  we  see  the  objective 
autonomy  of  sanction  in  existence  equally  for  good  acts,  namely, 
acts  useful  to  the  commimity  which  give  place  to  the  diflFerent 
forms  of  remunerative  sanction.  For  recompenses,  the  social 
reaction  is  again  always  independent  of  the  will  or  effort  of  the 
individual:  the  opera  singer  with  a  golden  voice,  the  poet  with 
facile  inspiration,  the  man  with  a  charming  appearance,  are  courted 
and  caressed,  although  they  have  done  nothing  to  obtain  their 
gifts.  Even  in  the  case  of  tireless  study  and  more  or  less  apparent 
sacrifices,  it  is  always  through  the  natural  disposition  of  the  indi- 
vidual in  the  given  conditions  of  environment  (likewise  independ- 
ent of  his  will)  that  a  man  can  achieve  a  high  position  in  society 
and  enjoy  the  advantages  of  remunerative  sanctions.  If  success 
depended  only  on  our  free  choice,  all  but  idiots  would  become 
eminent.  But  such  is  not  the  case,  because  "  to  will  is  to  be  able  '* 
is  only  true  where  one  is  able  to  will. 

§  239.    Social  Sanction  and  Crime. 

Thus,  departed  from  the  mere  reaction  of  pubUc  opinion  and 
arrived  at  the  case  of  penal  condemnation,  we  are  not  yet  on  the 
real  ground  of  the  right  to  prniish,  on  the  ground  of  criminality 
or  real  evil  acts.  We  have  remained  either  in  the  extra-legal 
field  of  public  opinion  or  in  the  legal  realm  of  civil  or  adminis- 


346  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  239 

trative  law  or  of  law  which  is  not  properly  penal.  We  have,  there- 
fore, before  us  the  vast  field  of  crimes  properly  so  called  and  of  the 
really  penal  sanctions  which  belong  to  them. 

The  man  who  steals  with  or  without  violence  for  his  own 
illegitimate  gain,  who  kills  to  satisfy  a  premeditated  revenge, 
or  ravishes  from  brutal  Ucentiousness;  the  merchant  who 
plans  his  bankruptcy,  the  slanderer  who  wishes  to  ruin  his 
victim,  and  the  Uke,  bring  down  on  themselves  (when  it  does 
reach  them)  a  rigorous  social  sanction  under  the  forms  of  real 
penalties  in  the  proper  sense  of  the  word.    This  is  justice. 

The  fact  of  an  inevitable  social  sanction  is  not  concerned  of  itself 
either  in  these  crimes  or  in  those  we  have  heretofore  mentioned. 
The  object  of  the  discussion  is  to  find  out  whether  this  social 
sanction  does  or  does  not  depend  upon  the  condition  of  "free 
will"  and,  hence,  of  "moral  culpabiUty"  as  is  maintained  by 
the  classical  criminal  science  and  by  penal  legislation.  This  is 
exactly  what  the  positivist  school  disputes  and  denies. 

For  what  reason  should  society,  which  reacts  severely  in 
all  the  other  numberless  cases  of  anti-social  action  without 
examining  them  for  elements  of  free  will  and  moral  fault, 
demand  this  element  as  a  condition  "sine  qua  non"  of  de- 
fensive reaction  when  there  is  question  of  other  acts  at  least 
as  anti-social.'*  Putting  aside  for  a  moment  the  preconceived 
ideas,  the  mental  and  sentimental  habits  of  the  past,  one  can 
see  at  a  glance  that  this  reaction  or  social  sanction  against  acts 
compromising  the  condition  of  human  existence  is  natural  and 
hence  is  as  necessary  and  inevitable  in  the  physical,  and  biological, 
as  in  the  social  order.  If  we  complete  the  series  of  different  kinds  of 
social  sanctions  in  the  extra-legal,  in  the  civil  and  administrative, 
and  in  the  really  criminal  domains,  beginning  with  the  lowest  step 
of  the  ladder,  that  is  to  say  from  the  simple  sanction  of  public 
disapprobation,  to  the  highest  penal  condemnation  for  an  actual 
crime — it  is  readily  seen  that  the  traditional  theory  of  moral  fault 
as  a  condition  of  punishability  simply  makes  penalty  in  the  strict 
sense  a  gratuitous  exception  in  the  whole  series  of  natural  and 
social  sanctions,  since  only  in  the  penal  form  of  social  sanction  does 
it  introduce  the  element  of  "moral  culpability,"  entirely  unknown 
and  neglected  in  every  other  kind  of  sanction.  Consequently,  the 
positivist  theory,  requiring  this  element  no  more  in  the  social  than 
in  other  sanctions,  has  this  great  advantage,  which  is  further  evi- 
dence of  its  truth,  namely,  that  (in  perfect  conformity  with  imi- 


§  240]  PRESENT  FORMS  OF  DEFENSIVE  REACTION       347 

versal  determinism — telluric,  organic,  and  social)  the  penal  sanction 
is  connected  with  the  whole  series  of  natural  (physical,  biological, 
and  social)  sanctions  and  is  thus  subjected  to  the  domination  of 
the  same  natural  laws  and  receives  a  much  more  sohd  foundation 
than  the  enigmatical  and  warmly-disputed  "moral  liberty."  ^ 
The  mere  entertaining  of  such  an  idea  —  that  penal  responsibiUty 
in  the  deliquent  should  be  independent  of  his  moral  liberty  or  cul- 
pability —  is  too  direct  a  shock,  however,  to  the  ordinary  habits 
of  thought  and  sentiment  not  to  arouse  lively  opposition  and 
chances  of  inducing  scientific  and  social  upheavals.  Still,  since 
this  idea  is  deduced,  in  the  field  of  anthropology,  from  positivist 
observation  of  unvarying  daily  facts;  since  it  is  interwoven,  in  the 
field  of  sociology,  with  the  whole  order  of  natural  and  human  life, 
it  seems  that  it  should  be  henceforth  received  by  imprejudiced 
minds.  It  is  certain  that  it  will  ultimately  prevail,  triumphing 
over  all  opposition  through  the  irresistible  force  of  everyday 
reality. 

§  240.    Moral  Ciilpability  must  be  Discarded  as  a  Prerequisite  in  Crime. 

Why  should  it  not  conquer?  In  spite  of  appearances  it  is  so 
slightly  revolutionary  that  it  was  recognized  in  primitive  legis- 
lations not  yet  dominated  by  the  religious  spirit  and  ideas  of  social 
ethics.^  Moreover,  it  is  more  or  less  openly  accepted  to-day  in 
our  penal  and  civil  codes.     When  the  penal  codes  punish  with 

^  It  must  be  remarked  with  Izoulet,  "La  cite  modeme"  (Paris,  1894),  Bk.  Ill, 
Chap.  VII,  that  the  different  forms  of  sanction  are  coexistent  and  often  inseparable. 
Thus,  every  crime  has  sanctions  of  a  physical,  biological,  and  social  order.  It  may 
meet  both  a  remunerative  and  coercive  sanction.  Durkheim,  "  Division  du  travail 
social,"  and  "Regies  de  la  methode  sociologique,"  accepting  and  developing  this 
naturaUstic  conception  of  sanction,  believes  that  the  specific  quality  of  social  facts 
is  constraint  under  one  form  or  another.  See  also  Dorado,  "Problemas  juridicos 
contemporaneos"  (Madrid,  1897),  p.  1. 

^  "In  barbarian  legislation,  the  importance  of  interest  (that  is,  of  the  evil  will) 
was  long  disregarded,  while  to-day  even  our  criminal  laws  make  it  of  so  great  an 
account,  that  many  cultured  men,  as  Bain  says,  look  upon  mistakes  of  intelhgence 
as  a  moral  stain."  Lubbock,  "Origin  of  Civilisation  and  the  Primitive  Conditions 
of  Man";  Ihering,  describing  the  evolution  of  the  idea  of  responsibility  in  Roman 
law,  says  that  primitive  law  had  an  objective  base  in  the  anti-jiu-idical  act,  and 
was  not  influenced  by  the  fault  of  the  ill  doer.  "  Das  Schuldmoment  im  romischen 
Recht"  (Giessen,  1876).  This  is  the  reason,  as  I  have  said,  that  the  subjective 
criterion  of  will  has  been  added  to  the  early  objective  one  of  damages  (and  of  the 
fear  which  inspires  the  wrongdoer,  as  Kraepelin  wrote  in  "La  colpa  e  la  pena,"  in 
the  "Riv.  di  filos.  scient.,"  II,  524,  and  529,  because  of  the  religious  and  moral 
spirit).  This  subjective  criterion  we  do  not  accept  in  the  sense  of  moral  freedom  or 
fault  in  the  agent,  but  as  his  personal  character  apart  from  the  objective  qualities 
of  the  act  and  the  accompanying  social  conditions.     Chap.  VII,  Tpost. 


348  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  240 

imprisonment  and  other  jjenalties  involuntary  homicide  and 
assaults,  their  sanction  is  clearly  founded  on  an  idea  different 
from  that  of  an  intentional  element  and  moral  responsibility.  In 
like  manner,  the  civil  codes  which  declare  a  man  responsible  and 
hence  Uable  in  damages  for  injury  caused  another,  not  only  where 
the  act  is  performed  by  himself,  but  is  due  to  negligence  or  want 
of  care  of  other  persons,  but  even  where  it  is  the  act  of  an  animal 
belonging  to  him,  "whether  the  animal  is  in  his  custody  or  has 
strayed  or  escaped";  ^  these  codes  are  clearly  based  upon  an 
idea  which  is  not  that  of  moral  responsibility.^  It  is  on  this 
account  that  a  classical  criminologist  has  said  that  in  punishing 
unpremeditated  crimes  "society  debates  between  the  necessity 
of  avoiding  the  material  evil  which  it  sustains  and  the  princi- 
ples of  justice  which  forbid  the  punishment  of  one  who  has  not 
had  the  slightest  intention  of  disobeying  its  laws.  If  it  prefers 
impunity,  it  leaves  a  social  evil  unremedied;  if  it  strikes  the 
agent,  it  chastizes  a  citizen  who  is  morally  innocent."  '  From 
this  it  may  be  seen  that  until  now  the  classical  criminologists 
have  formed  a  doubly  defective  idea  of  the  problem  of  responsi- 
bihty,  because,  on  the  one  hand,  they  have  considered  only  civi- 
lized humanity  already  dominated  by  ideas  of  religious  ethics 
and  still  impregnated  with  surviving  ideahsm;  and,  on  the  other 
they  have  confined  their  thinking  within  the  juridico-criminal 
field.  We,  however,  have  a  larger  idea  of  the  problem  and  one 
more  conformable  to  reality,  since,  not  content  with  the  study  of 
human  and  civilized  societies,  we  go  deeper  under  the  twofold 
relation  of  succession  and  coexistence,  into  the  study  of  the 
natural  evolution  of  the  problem,  up  from  animal  societies, 
through  savage  tribes,  to  ourselves.  We  study  its  present  con- 
ditions (the  evolutionary  product),  not  solely  in  their  juridico- 
legal  asp)ect  but  in  all  the  different  forms  of  individual  activity 
and  the  corresponding  reaction  of  social  sanction.  Therefore,  in 
order  to  eliminate  from  the  punishability  of  the  criminal  the  un- 
certain and  disputed  base  of  moral  responsibility  and  to  substitute 
for  it  a  really  p>ositivistic  base  safe  from  all  theological  or  philo- 
sophical discussion,  we  will  sum  up  our  researches  as  follows: 

*  See  Italian  Civil  Code,  Art.  1152  et  seq. 

*  See  also  the  Austrian  Civil  Code  §  1310,  which  gives  the  judge  power  to 
impose  damages  regardless  of  the  actual  or  virtual  responsibility  of  the  defendant. 

'  Ferrao,  "Direito  penal  portuguez,"  VII,  126.  See  abo,  Angiolius,  "II  ten- 
tative nei  dehtti  colposi";  "Colpa,  risarcimento  e  pena,"  S.  P.  (October,  1897, 
August,  1899),  and  "Delitti  colposi"  (Turin,  1900). 

V 


§241]    PRESENT  FORMS  OF  DEFENSIVE  REACTION      349 

§  241.    Social  Selection. 

Society  is  a  natural  living  organism  ^  and  as  every  animal 
body  lives  by  a  continual  process  of  assimilation  and  disassimila- 
tion  tending  to  the  well-being  of  the  individual,  the  very  first 

^  Gabba,  "Intomo  al  alcuni  pur  generali  problemi  della  scienza  sociale,"  II 
Series,  §  IV,  denied  this  conception  of  society,  which  makes  it  an  organism,  saying 
that  it  is  only  metaphoric.  After  this,  many  other  partisans  of  the  old  ideas,  or 
eclectics  wavering  between  the  old  and  the  new,  have  repeated  this  refrain,  that 
sociology  abuses  "metaphoric"  similarities  of  the  animal  and  social  organism,  and 
that,  apart  from  these  metaphors,  there  is  little  in  it.  But,  what  is  science  but  a 
series  of  metaphorical  and  superficial  similarities?  To  know  a  fact  is  simply  to 
compare  it  with  others,  noting  its  similarities  and  differences.  And  since  man  can 
know  only  the  appearance,  siu"face,  the  phenomena  of  things,  without  ever  grasp- 
ing the  substance,  essence,  or  noumena,  it  follows  that  all  scientific  similarities 
must  be  metaphorical  and  superficial.  It  is  only  in  departing,  whether  they  know 
it  or  not,  from  the  old  idea,  that  man  can  know  the  essence  of  things,  that  these 
barren  disparagers  of  sociology  can  imagine  that  they  know  its  soUdity  when  they 
make  a  reproach  of  an  existing  fact.  But  this  is  a  fact,  which  answers  every  para- 
dox; from  the  day  when  the  "abuse  of  metaphors"  was  held  up  against  social 
sciences,  they  have  seen  their  horizons  increase  and  illumine  in  an  unhoi>ed-for 
manner.  The  best  sign  of  movement  is  to  move.  More  recently  still,  the  organic 
conception  of  society  has  met  more  active  and  more  concentrated  opposition  at 
the  hands  of  sociologists,  who  (as  Novicon  rightly  said)  are  forced  to  accept  or  op- 
pose the  organic  conception  of  society  rather  for  extrinsic  considerations  than 
intrinsic  reasons.  Thus,  for  example,  Spencer,  who  was  among  the  first  to  advance 
and  uphold  the  conception  of  a  social  organism,  pointed  out  the  difference  between 
animal  and  social  organism,  because  his  individualism  prevented  him  from  making 
the  parts  (individuals)  subordinate  to  the  whole  (society).  So  many  oppose  the 
conception  of  a  society  organism,  because  they  fear  socialistic  results,  for  in  the 
social  body,  as  in  the  animal  body,  labor  and  nutrition  should  be  equally  distrib- 
uted among  all  the  elements  (cells  and  individuals)  which  compose  it,  and  that 
there  should  not  by  any  hypertrophied  (by  wealth)  or  atrophied  (by  poverty) 
cells.  Others,  on  the  contrary,  oppose  this  conception  for  a  different  reason;  they 
believe  that  the  conception  of  a  society  organism  leads  to  the  conclusion  that  as 
the  organs  in  the  animal  body  are  subject  to  the  "  despotism "  of  the  brain,  so  in 
society,  the  individual  must  be  subject  to  the  government  or  State.  Others,  finally, 
oppose  this  conception  because  it  relegates  reUgious  or  psychological  facts  to  a 
second  place,  and  this  is  contrary  to  a  hidden  spiritualism  in  their  doctrine  of 
positivist  appearances.  Not  being  able  to  discuss  here  the  arguments  for  and 
against  the  organic  conception  of  society,  I  will  simply  repeat  that  if  some  (for 
example,  Schaeffle,  "Bau  und  Struktur  des  socialen  Korpers")  have  exaggerated 
the  analogies  between  the  structure  of  the  animal  and  social  bodies  (comparing 
the  telegraph  wires  to  nerves),  on  the  other  hand,  the  fundamental  conception  of 
society  as  a  natural  organism  is  positive  and  undeniable,  in  the  sense  that  human 
society  (like  animal  societies)  is  a  natural  formation  and  not  the  voluntary  product 
of  human  psychology.  Consequently,  social  phenomena  are  natural,  that  is  to 
say,  necessarily  determined  by  the  physio-chemical  conditions  of  the  telluric  en- 
vironment, combined  with  the  physio-psychic  conditions  of  the  individual  organ- 
isms, resulting  in  the  formation  of  a  social  environment.  And  yet  it  must  never 
be  forgotten  that  all  these  physical,  biological,  psychological,  and  social  conditions 
have  a  reciprocal  reaction. 


350  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  241 

condition  of  its  existence,  so  likewise  human  society  can  neither 
exist  nor  prosper  without  the  ceaseless  labor  of  natural  assimila- 
tion (births)  or  artificial  assimilation  (immigration)  and  of  equally 
natural  disassimilation  (deaths)  or  necessarily  artificial  disassimila- 
tion  (emigration  and  segregation  of  anti-social  individuals,  inca- 
pable of  assimilation  because  of  contagious  disease,  insanity,  and 
crime).  Thus  this  function  of  social  preservation  against  crimi- 
nality comes  into  its  place  among  the  forms  of  social  selection 
that  have  had  and  still  have  so  large  a  part  in  the  evolution  of 
humanity.  It  is  in  this  very  connection  that  there  have  been 
selectionist  excesses  in  the  relations  between  natural  Darwinism 
and  social  Darwinism,  as  when  Garofalo  demands  that  born  crim- 
inals be  put  to  death.  Yet  penal  justice  is  not  merely  a  function 
of  selection  —  it  is  or  should  be  more  a  function  of  the  preserva- 
tive clinic.  Again,  the  purely  selectionist  (Darwinism)  point  of 
view  must  be  supplemented,  in  the  social  as  in  the  biological 
order,  by  the  (Lamarckian)  notion  of  adaptation  to  environment; 
so  that  in  the  pathogenesis  of  crime  the  influence  of  the  social 
environment  must  be  of  great  weight,  whether  we  consider  the  so- 
cial sanction  against  crime  or  the  readaptation  of  the  criminal  to 
social  life,  as  we  shall  see  in  the  following  pages.  At  all  events, 
a  place  must  be  made  in  the  preservative  clinic  of  crime,  as  in 
the  clinics  of  ordinary  diseases  and  insanity,  for  the  social  elimi- 
nation of  those  who  are  least  adapted  to  life.  The  fundamental 
problem  of  humanity  and  the  condition  of  all  progress  has  been 
the  adaptation  of  the  indi\adual  to  permanent  life  with  other 
individuals,  by  an  uninterrupted  discipline,  often  of  prolonged 
brutality  and  bloodshed,  through  a  long  chain  of  centuries.^ 
The  separation  of  criminals  as  a  beneficent  means  of  social  selec- 
tion will  find  its  normal,  useful  appUcation  only  in  a  social  organ- 
ization which,  in  eUminating  all  forms  of  degeneracy,  will  really 
assure  the  survival  of  the  best,  whereas  to-day  we  have  but  the 
survival  of  those  who  either  as  oppressors  or  as  the  oppressed  are 
best  adapted  to  the  present  social  environment.  Be  this  as  it 
may,  penal  justice,  first  deprived  of  any  other  character  than 
that  of  a  function  of  social  preservation,  must  view  crime  as  the 
effect  of  individual  anomalies  and  as  a  symptom  of  social  pathol- 
ogy necessarily  postulating  the  removal  of  anti-social  individuals 

*  Bagehot,  "Physics  and  Politics"  (London,  1872);  Starcke,  "Les  lois  de  r6vo- 
lution  politique,"  A.  J.  J.  S.  (Paris,  1898),  IV,  641;  Vaccaro,  "Le  basi  del  diritto 
e  dello  stato"  (Turin,  1893). 

V 


§242]    PRESENT  FORMS  OF  DEFENSIVE  REACTION      351 

by  isolating  the  infectious  elements  and  disinfecting  the  environ- 
ment in  which  the  germs  develop.  Again,  the  existence  of  every 
animal  is  the  resultant  of  an  internal  or  biological  life  and  an 
external  relative  or  sociological  life  which  cross  each  other  and 
which  becomes  more  complex  as  the  animal  approaches  the  higher 
stages  of  the  zoological  scale.  In  man,  as  yet  the  last  and  most 
perfect  stage  of  that  scale,  the  relative  life  has  an  extraordinary 
development  in  comparison  with  what  is  seen  among  the  lower 
species.  It  grows  more  and  becomes  ever  increasingly  complicated 
as  man  passes  from  the  savage  state  to  a  more  and  more  advanced 
civiUzation,  since  the  origin  of  any  individual  act,  physiological  or 
psychic,  is  always  found  not  solely  in  the  personaUty  of  the  agent 
but  also  and  particularly  (on  account  of  actual  hereditary  influ- 
ence) in  the  collectivity  to  which  he  belongs.^  This  social  life  is 
nothing  but  a  sequence  of  action  and  reaction,  indefinite  in  time 
and  space,  but  without  which  it  cannot  exist.  From  this  it  fol- 
lows that  just  as  every  individual  act,  however  indifferent  it  may 
seem,  determines  an  infinity  of  movements  in  the  physical  environ- 
ments, so  in  like  manner  it  also  always  determines  in  the  social 
body  a  reaction  corresponding  to  it  in  quality  and  quantity,  either 
by  other  individuals  taken  separately  or  by  the  whole  society  or 
its  representatives. 

§  242.    Moral  Culpability  an  Impossible  Basis  for  Defense  of  Society. 

Whatever  name  be  given  to  the  different  social  reactions  re- 
sponsive to  each  individual  act,  both  in  the  case  of  an  indemnity 
demanded  for  the  damage  caused  or  a  penal  fine,  and  in  the  case 
of  forced  detention  in  an  insane  asylum  or  confinement  in  prison,, 
the  idea  that  society  punishes  a  moral  fault  to  avenge  itself  or  to 
give  reparation  to  the  right  invaded  or  to  exercise  an  act  of  retrib- 
utive justice  must  be  excluded.  It  merely  performs  a  function 
of  defense,  or  preservation,  wherein  no  resentment  or  intention 
of  revenge  against  the  criminal  enters  and  which  is  free  from  any 
sentimentalism  with  respect  to  these  always  unfortunate  and 
also  more  or  less  dangerous  beings.  This  defensive  function  of 
society  is  wrongly  called  the  right  to  punish,  not  alone  because 

1  Marion,  "La  solidarite  morale"  (Paris,  1897);  Izovlet,  "La  cite  modeme"; 
De  Koberti,  "Le  psychisme  social"  (Paris,  1897);  Baldwin,  "Social  and  Ethical 
Interpretations  of  Mental  Development"  (New  York,  1898).  Contra  to  the  illu- 
sion of  exaggerated  individualism,  more  common  among  artists,  but  which  has 
been  the  basis  of  political  doctrines,  see  Max  Nordau,  "Die  Degeneration";  Ferri, 
"I  delinquenti  nell'  arte,"  Cap.  VIII. 


352  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  243 

it  is  also  exercised,  or  I  might  say  principally  exercised,  through 
measures  which  have  nothing  penal  in  them  (as  we  shall  pres- 
ently see),  but  even  more  because  the  word  punishment  always 
impUes  a  remnant  of  the  medieval  ideas  of  expiation  and  retri- 
bution as  the  final  end,  and  of  pain  and  torture  as  the  means  of 
attaining  it,  a  means  which  finally  becomes  an  end  in  itself.  For 
it  is  a  constant  psychological  phenomenon  that  things  first  sought 
as  means  (for  instance,  books  of  instruction  or  money  for  the 
need  of  life)  are  later  desired  and  considered  as  being  their  own 
proper  objects.  Thus  books  are  put  on  library  shelves  with 
pages  uncut,  and  money  is  accumulated  in  the  strongbox  of  the 
miser.  For  the  future  the  social  function  must  have  the  welfare 
of  the  collectivity  as  its  single  object  and  effect.  One  of  the 
first  conditions  in  bringing  that  about  is  respect  for  human  per- 
sonality of  criminals,  confined  as  a  clinical  measure  of  preserva- 
tion, as  with  ordinary  sick  people  in  hospitals  or  the  insane  in 
asylums.^  By  similar  reasoning,  the  different  anti-social  acts, 
which  provoke  an  individual  or  collective  reaction,  should  not  all 
be  termed  crimes,  not  alone  because  those  committed  by  the 
insane  or  those  not  caused  by  evil  motives  are  not  real  mis- 
deeds ^  even  in  public  opinion;  but  because  the  word  crime 
always  implies  the  idea  of  free  will  abandoning  the  straight  road. 
Now  such  an  idea  is  disproved  by  the  results  of  psychology.  It 
would  be  better  for  the  moment  to  follow  the  example  of  Car- 
mignani  (already  imitated  by  Berenini)  who  never  speaks  of  crime 
and  punishment  but  employs  offense  and  defense,  or  better  still, 
when  the  scientific  data  of  the  origin  of  delinquency  shall  have 
passed  into  the  common  consciousness,  to  speak  of  the  moral 
malady  and  of  the  preservative  clinic. 

§  243.    Social  Accoiintability  in  Place  of  Moral  Responsibility. 

Let  us  put  aside  words  which  always  end  in  changing  their 
meaning  whenever  the  ideas  change,  as  has  happened  in  the  case 

^  Ferrero,  "Le  progr^  moral,"  R.  P.  (December,  1894),  showing  that  moral 
progress  consists,  in  the  last  analysis,  in  a  growing  repugnance  to  inflict  pain  upon 
living  creatures.  Taking  a  somewhat  analogous  point,  Demogue,  "De  la  souffrance 
et  de  son  imputation  sur  la  peine,"  in  the  "Revue  penitentiare,"  holds,  in  connec- 
tion with  the  French  law  of  1892,  which  dates  the  sentence  from  the  day  of  deten- 
tion, that  the  sentence  should  be  based  on  all  the  penalties  and.suffering  that  have 
been  undergone,  and,  on  the  other  hand,  exclude  all  suffering  which  does  not  make 
for  his  betterment. 

*  Carrara,  "  Programma,"  §  86. 


§243]    PRESENT  FORMS  OF  DEFENSIVE  REACTION     353 

of  the  very  word  penalty,  whose  earliest  meanmg  was  compensa- 
tion and  not  an  act  of  retributive  justice.^  Now  that  we  have 
excluded  the  idea  of  moral  responsibility  from  the  legal  field,  an 
idea  which  is  denied  by  positivist  psychology  and  which  is  im- 
possible of  definition  and  which  at  all  events  belongs  to  the  moral 
or  religious  order,  what  other  criterion  shall  be  proposed  as  the 
basis  and  rule  of  the  defensive  social  function  if  we  wish  to  avoid 
the  reproach  made  us  by  some  adversaries  of  thus  reducing  penal 
law  to  a  mechanical  struggle  of  blind,  brute  forces  and  of  lowering 
the  judge  to  the  level  of  the  murderer?  Guyau,  in  summarizing 
the  ideas  of  the  most  illustrious  English  psychologists  on  the 
problem  of  moral  responsibility,  having  denied  free  choice,  rightly 
points  out  that  "in  the  end  they  all  invariably  have  recourse  to 
social  accountability.^  Then,  examining  in  a  very  short  chapter 
the  ideas  of  Stuart  Mill  on  this  social  accountability,  the  sagacious 
critic  disclosed  many  weak  points  in  the  disconnected  observations 
of  that  psychologist  and  concludes:  "let  the  English  school  deny 
the  existence  of  moral  liberty  and,  hence,  the  possibihty  of  attain- 
ing to  a  perfect  and  truly  legitimate  sanction,  so  be  it.  But  the 
questions  should  be  frankly  put  and  logically  solved."^ 

That  is  precisely  what  I  have  tried  to  do  elsewhere  and  what 
I  am  again  trying  here,  I  repeat,  in  coordinating  better  my  ideas 
to  render  myself  yet  more  worthy  of  the  praise  of  another  and 
benevolent  critic.  The  two  poles  between  which  all  social  science 
that  mirrors  life  oscillates  are  the  individual  and  society.  If,  there- 
fore, you  deny  that  the  reason  of  responsibility  is  in  the  individual, 
there  is  nothing  else  to  do  but  to  place  it  in  society.  Without 
lingering  over  other  discussions  of  sociology  and  law,  it  suflSces  for 
my  purpose  to  say  that  the  natural  and  positivist  moral  sciences 
coincide  in  demonstrating  that  the  individual,  whatever  be  his 

^  In  the  moral  and  legal  sciences,  words  have  changed  their  meaning  with  the 
advance  of  civilization  and  each  word  has  a  history;  Niccolini,  "Questioni  di  di- 
ritto"  (Naples,  1869),  I,  160.  Also,  Ardigo,  "La  morale dei  positivisti,"  p.  417.  It 
is  still  said  that  steamers  sail  for  America,  employing  a  phrase  which  corresponds 
to  an  earlier  stage  of  maritime  life.  Crimes  are  still  punished  in  phraseology,  while 
in  fact  we  should  defend  ourselves  from  them.  The  meaning  of  the  word  "punish- 
ment" has  changed  in  all  the  phases  of  its  evolution;  and  this  fact  is  not  recog- 
nized by  Hamon,  for  example,  in  "  Determinisme  et  responsabilite"  (Paris,  1898), 
p.  234,  in  accusing  us  of  contradiction  because  we  speak  of  pimishment  as  a  means 
of  social  defense  against  crimes,  which  do  not  depend  on  the  moral  freedom  of  the 
delinquent. 

2  Guyau,  "La  morale  anglaise  contemporaine"  (1879),  p.  346. 

'  "Nuova  Antologia"  (1  June,  1882),  pp.  581  et  seq. 


354  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  243 

species,  does  not  exist  only  as  such,  in  himself  ("selbstwesen"  as 
the  Germans  say),  but  rather  as  a  member  or  an  element  of  a  society 
("gliedwesen").  Just  as  cells,  tissues,  and  organs  have  no  biologi- 
cal existence  in  the  animal  body  except  as  parts  of  a  whole,  so  man, 
the  family,  and  the  community,  have  no  sociological  existence 
except  as  members  of  a  more  vast  society.  They  have  no  socio- 
logical existence  because,  without  society,  there  is  no  law  and 
without  law  it  is  impossible  for  men  to  live  together.  This  is  why 
the  two  opposite  systems,  absolute  and  metaphysical  individual- 
ism, and  absolute  and  metaphysical  communism,  are  equally  wide 
of  the  truth;  neither  has  the  individual  any  existence  in  himself 
without  society  nor  can  society  be  abstracted  from  the  Lndividual 
and  his  personal  relations,  either  organic  or  psychic.  If,  therefore, 
in  this  eternal  strife  between  the  individual  and  society,  we  refuse 
the  latter  ability  to  justify  its  defensive  function  by  the  moral 
responsibility  of  the  individual,  only  two  possible  solutions  remain 
either  to  deny  this  function  to  society  or  justify  it  by  the  principle 
of  social  accountability.  It  is  beyond  any  doubt  that  the  State, 
and  society  like  any  other  hving  organisms,  have  the  right  of  self- 
preservation,  or,  more  accurately,  the  natural  necessity  to  defend 
themselves  like  any  other  Uving  being,  only  in  different  forms  cor- 
responding to  the  differences  between  an  individual  and  a  social 
organism.  To  every  argument  opposed  to  them  in  this  regard 
society,  and  for  it,  the  State  which  is  its  juridical  expression,  might 
answer,  as  did  the  ancient  philosopher  before  whom  the  existence  of 
motion  was  denied,  by  moving  effectively  for  their  defense  and  pres- 
ervation. Thus  the  usual  objection  offered  us  with  a  persistence 
worthy  of  a  better  cause  by  the  representatives  of  the  traditional 
ideas  falls  and  disappears  when  they  say  that  with  the  elimination 
of  liberty  in  man  all  his  moral  responsibihty  ceases  and  that  con- 
sequently society  no  longer  has  any  right  to  punish.  This  objec- 
tion, natural  enough  in  those  who  are  preoccupied  ^dth  the  idea 
of  moral  liberty,  is  also  put  forward  by  many  metaphysical  deter- 
minists.  Robert  Owen,  for  example,  places  it  at  the  base  of  his 
whole  socialistic  system.  It  is  met  in  the  juridical  field  by  the 
irresistible  necessity  of  society  to  provide  for  its  own  preservation. 
As  to  the  moral  question,  it  suffices  to  say  that  all  contradiction 
disappears  when  the  mystical  meaning,  of  which  we  just  spoke,  is 
no  longer  given  to  the  word  punish,  and  when  the  necessarily 
determined  individual  act  (the  crime)  is  considered  as  the  deter- 
mining cause  of  an  equally  necessary  reaction  (the  penalty),  and, 


§  243]    PRESENT  FORMS  OF  DEFENSIVE  REACTION     355 

where  this  is  lacking,  of  a  no  less  necessary  individual  reaction 
(lawful  defense).  Then,  as  I  wrote,^  the  criminal  will  say  to  the 
State:  "Why  do  you  punish  me  for  an  act  from  which  it  was 
impossible  for  me  to  abstain?  "  And  according  to  us  the  State 
will  reply:  "For  the  sole  reason  that  I  Ukewise  am  unable  to 
abstain  from  punishing  you  in  the  defense  of  law  and  society." 
There  is  here  perfect  mutuality  and,  hence,  perfect  justice. 
Should  the  criminal  try  to  impair  the  right  of  society  to  pimish, 
by  asserting  with  Reid,^  "that  he  did  wrong  because  he  could 
not  do  otherwise  and  that  necessity  knows  no  law,"  the  State  can 
reply  to  him,  "But  I,  too,  punish  because  I  cannot  do  otherwise 
and  I,  too,  assert  that  necessity  knows  no  law."  In  the  considera- 
tion of  the  problem  of  responsibility  in  relation  to  the  denial  of 
free  choice,  our  adversaries  are  in  error  in  pausing  with  one- 
sided considerations  and  adopting  only  the  point  of  view  of  the 
criminal.  A  merchant  thinking  to  gain  weight  in  merchandise 
bought  at  the  equator  for  sale  at  the  poles,  would  miss  his  cal- 
culation in  centering  his  attention  only  upon  the  merchandise 
and  forgetting  that  the  scales  also  gain  in  weight  in  the  vicinity  of 
the  poles,  because  of  the  shorter  distance  to  the  center  of  the 
earth.  A  similar  error  is  made  when  only  the  individual  is  con- 
sidered and  when  every  penalty  is  branded  as  unjust  which  is 
apphed  to  acts  not  morally  free.  Assuredly,  if  the  criminal 
obeyed  a  moral  necessity  and  if  the  State  were  morally  free,  every 
penalty  inflicted  by  the  latter  for  an  act  that  was  unavoidable 
would  be  absurd;  but  if  the  State  and  its  representative  are  under 
necessity  to  punish,  that  is,  to  defend  themselves,  then  everything 
becomes  logical  and  natural  and  conforms  perfectly  with  universal 
determinism.  The  same  thing  is  true  in  the  course  of  everyday 
life:  when  I  react  to  an  insult,  it  is  error  to  tell  me  that  I  should 
not  have  been  offended  since  the  offender  has  no  free  choice;  for, 
in  turn,  I  am  not  free  not  to  react:  he  insults  me  from  necessity, 
but  it  is  also  from  necessity  that  I  react.  Rather  than  abandon 
children  and  pupils  to  their  physio-psychological  expansiveness 
only  afterwards  to  restrain  their  inevitable  excesses  by  trying  at 
the  most,  and  quite  uselessly,  to  anticipate  them  by  warnings 
and  threats,  it  were  better  to  provide  outlets  for  their  activity, 
to  give  it  useful  directions  by  employing  it  in  suitable  occupa- 
tions and  especially  by  safeguarding  it  from  shocks  and  irritating 

1  Ferri,  "Teorica  dell'  imputabilitH,"  p.  422. 
"  Reid,  "Essays,"  Chap.  I. 


356  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  C§  245 

disappointments.    And  the  same  may  be  said  of  adults  and  of 
their  coexistence  in  society. 

§  244.    Public  Opinion  and  Social  Defense. 

It  is  true  that  public  opinion,  influenced  by  the  old  ideas,  is 
still  more  or  less  refractory  to  this  positivist  conception  of  law 
and  social  defense  and  resists  the  propagation  of  our  ideas  among 
those  who  are  in  the  majority  and  who  judge  not  from  the  results 
of  patient  and  exhaustive  studies,  but  only  in  accordance  with 
the  intuitions  of  sentiment  and  mental  habits.  This  cannot  be 
helped:  beneath  the  surface  even  to-day,  without  accepting 
entirely  the  scientific  reasons  of  the  new  school,  the  citizen  always, 
or  nearly  always,  bears  the  consequences  of  his  acts  whether  by 
damages  paid  in  a  civil  suit,  fines  imposed  for  police  contraven- 
tions and  involuntary  offenses,  inclusion  in  an  insane  aslyum,  or 
detention  in  a  prison.  Still,  there  is  a  great  and  ineffaceable  dif- 
ference between  the  last  of  these  consequences  and  the  others: 
viz.,  in  the  cases  of  damages,  contraventions,  involuntary  offenses, 
and  the  insane  asylum,  public  opinion  does  not  place  on  the  per- 
son sentenced  the  brand  of  its  contempt  and  hatred;  whereas, 
when  the  guilty  one  is  imprisoned  for  a  real  misdeed,  he  is  con- 
sidered as  radically  bad  and  is  overwhelmed  with  scorn.  This 
obstacle  is  quite  serious,  since  it  is  due  to  an  actual  fact  —  a  gen- 
eral sentiment  —  and  not  to  a  process  of  reasoning.  It  is,  how- 
ever, only  a  relative  idea  and  in  no  way  weakens  the  truth  of  our 
beUefs,  although  it  can  retard  their  expansion.  It  might  be 
answered  forthwith  that  even  in  the  case  of  indemnity,  involun- 
tary crime,  and  confinement  for  insanity,  there  is  always  present 
in  public  opinion  a  certain  moral  reaction,  more  or  less  variable, 
but  which  amounts  to  a  lack  of  respect  or  a  damaged  reputation. 
Still,  experience  shows  that  pubHc  opinion  changes  in  the  course 
of  time,  in  accordance  with  the  prevailing  ideas  in  the  succes- 
sion of  reahzed  progress  which  opposes  future  progress.  Of  this 
history  gives  striking  proofs. 

§  246.    History  of  Treatment  of  Insanity. 

Less  than  one  hundred  years  ago  the  insane  were  punished  as 
guilty  and  were  objects  of  public  execration,  because  the  effect 
of  a  diseased  organism  was  imputed  to  their  malevolent  will.^ 

^  Dr.  Heinroth  wrote  about  the  year  1800,  "Insanity  is  the  loss  of  moral  re- 
sponsibility, and  never  depends  upon  a  physical  cause.    It  is  not  a  disease  of  the 


§  245]  PRESENT  FORMS  OF  DEFENSIVE  REACTION       357 

It  was  only  after  the  efforts  of  Chiarugi  and  Pinel,  —  preceded, 
as  Alvisi  ^  has  shown,  by  those  of  Valsalva  d'Imola,  that  society 
became  convinced  that  insanity  is  like  any  other  disease  and 
requires  the  care  of  the  physician  and  not  the  whip  of  the  galley 
master.  And  yet,  whoever  had  maintained  that  the  poor  demented 
person,  the  poor  demonomaniac,  should  not  be  considered  as 
morally  responsible  for  his  insanity,  nor  as  evil,  and  worthy  of 
punishment  and  contempt,  would  have  deeply  shocked  public 
opinion  which  admitted  non-culpability  only  in  the  most  evident 
cases  of  violent  mania.  Appearances  and  ignorance  saved  the 
furious  maniac  and  consigned  the  demented  victim  of  hallucina- 
tions to  chains  and  the  executioner.  It  was  only  by  a  slow  evolu- 
tion of  psychiatry  and  of  public  opinion  as  its  counter-effect,  that 
the  modern  opinion  was  reached  that  the  insane  are  not  responsible 
for  their  acts.  As  Dubuisson  "^  remarked,  about  1800,  the  irre- 
sponsibility of  the  insane  was  as  yet  admitted  only  in  the  rare  and 
evident  cases.  The  field  of  delinquency  (by  free  will)  was  vast 
while  the  field  of  insanity  (due  to  pathological  conditions)  was 
limited.  Esquirol  caused  the  first  progress  to  be  made  with  his 
theory  of  partial  or  monomaniacal  insanity,  a  theory  now  rejected 
by  psychiatry  which  regards  these  forms  as  only  the  most  apparent 
symptoms  of  a  general  psychopathic  condition.  The  theory 
served  to  extend  the  idea  of  insanity  even  to  the  least-evident 
cases  of  mental  infirmity.  A  second  step  was  accomplished  by 
excluding  the  doctrine  of  the  monomaniac  forms  considered  as 
nosological  entities  existing  in  themselves  and,  hence,  conceding 
irresponsibility  of  the  insane  whatever  might  be  the  apparent 

body,  but  a  disease  of  the  mind,  a  sin.  Any  man  who  throughout  his  life  keeps  the 
image  of  God  before  his  eyes  and  in  his  mind,  need  never  fear  a  permanent  loss  of 
reason,"  cited  by  Ribot,  in  "La  heredite  psychologique,"  2d  ed.,  p.  140.  This  is 
why,  in  the  Middle  Ages,  the  treatment  of  the  insane  consisted  for  the  most  part 
in  chastisement  and  exorcisms.  Indeed,  it  was  not  unusual  for  torture  and  even 
capital  punishment  to  be  inflicted.  Leidesdorf,  "  Treatise  on  the  Mental  Diseases," 
Maudsley,  "  ResponsibiUty  in  Mental  Diseases."  Among  criminalists  Rossi,  in  the 
middle  of  the  nineteenth  century,  wrote  in  his  "Trattato  di  diritto  penale,"  Bk. 

I,  Chap.  IX,  *'  Many  crimes,  above  all  the  most  frightful  and  atrocious,  are  at  the 
moment  of  their  commission,  the  effects  of  true  monomania.  But  this  momentary 
eclipse  of  reason  is  imputable  to  the  man,  as  the  result  of  his  entire  life,  of  a  life  of 
freedom  (!).  We  are,  therefore,  in  noAvise  scandalized  or  astonished  to  see  human 
justice  strike  patricides  and  murderers,  although  clearly  monomaniacal,  with  its 
axe.     Their  punishment  is  useful,  but  even  more  just  than  useful." 

*  Alvisi,  "L'antico  ospedale  dei  pazzi"  (Bologna,  1881). 

*  Dubuisson,  "De  revolution  des  peines  en  matiere  de  responsabilit^,"  A.  C. 
C.  C.  (15  March,  1887).    See  also  Cobade,  "De  la  responsabilite  criminelle,"  Chap. 

II,  "Doctrine  de  I'irresponsabilit^,  ses  variations,  ses  progres." 


358  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  245 

connection  between  each  of  the  acts  committed  by  them  and 
the  special  delirium  that  characterized  their  pathological  con- 
dition.^ 

^  To  show  the  absolute  insufficiency  and  the  uncertainty  of  the  classical  theory 
of  moral  responsibility  in  the  matter  of  distinguishing  the  insane  from  the  criminal, 
we  will  give  the  following  characteristic  example: 

In  cases  of  partial  insanity,  Mittemaier,  "De  alienationibus  mentis"  (Heidel- 
berg, 1825),  and  Mori,  in  his  "Scritti  germanici,"  II,  125,  established  this  legal 
rule,  excellent  from  the  point  of  view  of  logical  symmetry;  —  that  if  the  act  done 
by  the  monomaniac  was  related  to  his  partial  deUrium,  he  was  not  responsible; 
but  if  this  relation  did  not  exist,  he  should  be  punished.  He  took  the  hypothet- 
ical case  of  the  man  with  the  fixed  idea  that  he  had  a  glass  leg.  If  such  a  man  killed 
another  who  threatened  to  hit  his  leg  -<fi\\h  a  stick,  he  is  not  responsible,  said  Mitte- 
maier, but  if  he  stole  a  pocket-book,  this  act  having  no  relation  to  his  mania,  he 
was  legally  and  morally  responsible  as  an  ordinary  thief.  Carrara,  "Programma," 
§  249,  accepts  this  theory  in  full. 

But  now  that  psychiatry  has  demoUshed  the  theory  of  monomanias,  what 
should  criminal  law  do?  Of  course,  it  must  change  in  accordance  with  the  data  of 
the  science  of  psychiatry  and  give  up  this  first  theory,  logical  in  form,  but  childish 
and  lacking  scientific  foundation.  In  fact,  Mittemaier,  speaking  of  the  second 
edition  of  the  "Programma,"  said  that  in  view  of  the  progress  of  psychiatry,  he 
abandoned  his  legal  theory. 

And  yet  Carrara  did  persist  in  upholding  his  theory  "in  the  year  of  grace  1886! " 
And  in  reporting  a  case  noted  by  Brierre  de  Boismont,  of  a  man  with  a  fixed  idea 
that  his  blood  was  poisoned  by  washing  his  hands  in  a  vase  containing  a  sub-oxide, 
he  said,  "if  some  one  had  struck  this  poor  man's  hands  with  a  thong  and  he  had 
killed  him,  I  would  have  acquitted  him,  but  I  do  not  believe  that  he  was  entirely  in- 
sane and  therefore  if  he  had  committed  rape,  I  would  have  convicted  him  "  (§  249, 
N.  2).  And  who  would  believe  that  in  the  mysterious  paths  of  systematic  delir- 
ium (paranoia  as  it  is  now  called)  rape  and  robbery  are  not  associated  with  poisoned 
blood?  The  insane  man  can  fancy,  for  example,  that  he  will  free  his  blood  of  this 
poison  by  violating  a  woman.  And  is  it  not  a  frequent  illusion,  even  in  criminals 
who,  though  not  insane,  commit  rape  that  this  act  and  other  obscene  acts  on 
young  girls  ciu^  venereal  or  syphiUtic  infection?  Or,  on  the  other  hand,  the  insane 
may  commit  robbery  to  buy  some  drug  that  he  believes  necessary  for  the  cure  of 
his  blood.  Such  are  the  data  of  psychiatric  study,  very  different  from  the  syllo- 
gistic conclusions  of  abstract  criminal  theories.  And  yet  this  theory  of  Carrara  is 
that  of  Chauveau  and  Belie,  "Theorie  du  code  penal,"  1,  §  841;  of  Pessina,  "Ele- 
mente"  (Naples,  1882),  pp.  219-220;  and  of  Canonico,  "Del  recto  e  della  i>ena" 
(Turin,  1872),  p.  149.  Some  among  the  classicists  have,  however,  abandoned  this 
naive  theory,  for  example,  Bemes,  "  Treatise  on  Criminal  Law,"  who  cites  .\rt.  II  of 
the  Canadian  Penal  Code  of  1893;  "A  person  who  b  controlled  by  a  mental  aberra- 
tion on  a  particular  point,  but  is  otherwise  sane,  should  not  be  acquitted  on  account 
of  the  mental  alienation,  unless  his  aberration  led  him  to  believe  in  the  existence 
of  something,  which  if  it  had  existed  would  have  justified  or  excused  his  act." 

The  opposition  of  contemporaneous  classical  criminologists  to  the  positive 
theory  of  the  social  responsibiUty  of  all  criminals,  including  the  insane,  determined 
by  the  most  recent  data  of  criminal  psychiatry  and  anthropology,  resembles  too 
much  Carrara's  opposition  to  the  analogous  innovation  of  psychiatry  in  the  spe- 
cial case  of  monomanias  for  this  error  of  the  great  criminologist  not  to  be  very 
instructive. 


§246]    PRESENT  FORMS  OF  DEFENSIVE  REACTION      359 

S  246.    Moral  Insanity. 

Thereafter,  the  psychopathological  field  grew  in  comparison 
with  the  field  of  delinquency,  due  to  the  conception  of  what  is 
called  moral  insanity  m  which  the  inteUigence  may  remain  intact, 
or  nearly  so,  while  the  disease  attacks  the  sentiments  only,  and 
especially  the  moral  or  social  sense.  But  just  as  happened  with 
regard  to  cases  of  monomania,  psychiatry  no  longer  admits  a 
distinct  species  of  morally  insane,  since  Lombroso  has  proved 
that  moral  insanity  consists  in  congenital  delinquency.  This 
happy  demonstration  of  Lombroso  has  been  for  modern  psy- 
chiatry something  like  the  egg  of  Christopher  Columbus,  and  with 
it  criminal  anthropology  enters  into  the  last  phase  where  every 
absolute  division  between  insanity  and  crime  is  lost,  although 
there  subsists  between  them  distinctive  clinical  characteristics 
just  as  between  the  different  special  forms  of  insanity  and  crime. 
Madmen  and  criminals  thus  reenter  the  large  and  unhappy  family 
of  the  abnormal,  the  diseased,  the  degenerate,  and  the  anti-social.^ 

Nothing  is  more  natural  and  nothing  better  corresponds  to  this 
scientific  evolution  of  psychiatry  and  criminal  anthropology  than 
the  theory  which  I  have  maintained  on  social  accountability, 
without  moral  responsibility  on  the  part  of  those  who  commit 
acts  inconsistent  with  the  conditions  of  social  existence.  With 
this  view  we  are  at  liberty  to  adapt  the  forms  and  criteria  of 
this  common  social  accountability  to  the  particular  conditions 
of  the  criminals  themselves  according  to  their  classification  as 
insane,  born,  habitual,  or  criminals  by  occasion  or  by  passion.^ 
Opposed  to  this  radical  innovation  in  juridico-criminal  theories, 
is  the  general  hostility  of  public  opinion  and  the  jurists  accustomed 
through  the  classical  theories  of  a  more  or  less  exact  and  com- 

^  It  is  necessary,  however,  in  this  matter,  as  it  is  in  the  distinction  between 
atavic  and  evolutive  criminality,  to  distinguish  the  involutive  abnormals,  who  are 
without  human  and  social  value,  from  the  evolutive  abnormals  who,  on  the 
contrary,  often  fulBll  a  useful  progressive  function  through  their  psychological 
qualities  of  monodeism,  philoneism,  and  spirit  of  sacrifice,  fanaticism,  and  non- 
conformism,  which  makes  them  reject  the  conventional  lies  of  mental  prejudice 
and  habit. 

Ferri,  "La  rehabilitation  des  anormaux,"  R.  R.  (Feb.  15,  1899). 

*  Need  I  repeat  that  my  phrase  "social  responsibility,"  that  is  to  say,  the 
responsibility  of  the  individual  toward  society  (from  which  the  co-responsibility 
of  society  toward  the  individual  cannot  be  separated  for  social  criminogenitive 
reasons),  is  entirely  equivalent  in  its  content  to  the  formula  "social  reactivity" 
which  Hamon,  "  D^terminisme  et  responsabilit^,"  last  section,  would  substitute 
for  it? 


S60  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  247 

plete  moral  responsibility,  to  consider  criminals  as  the  non- violent 
insane  were  formerly  considered.  Nor  can  this  hereditary  rem- 
nant of  the  former  ideas  be  dissipated  by  argument  alone.  As 
Maudsley  observes,  "history  demonstrates  that  practice  sur- 
vives a  long  time  after  the  theory  which  inspired  it  has  been 
generally  discredited."  But,  sooner  or  later,  science  will  succeed 
in  changing  pubUc  opinion  and  in  causing  the  acceptance  of  the 
theory  that  even  criminals  are  more  or  less  unfortunate  individ- 
uals impelled  by  the  abnormal  state  of  their  organism  to  crime 
from  tender  infancy  or  deprived  of  sufficient  force  to  resist  the 
impulse  of  occasion.  Then  what  has  now  occurred  in  the  case  of 
the  insane  will  occur  in  their  case;  they  will  no  longer  excite  hatred, 
contempt,  or  cruelty,  but  the  inexorable  necessity  for  their  sepa- 
ration from  other  men  by  society  whenever  preventive  means 
prove  inadequate  will  still  remain.  Even  in  our  day,  especially 
in  relation  to  the  more  unusual  and  brutal  crimes,  a  reflection  of 
this  scientific  way  of  considering  crime  as  a  phenomenon  of  individ- 
ual and  social  pathology  is  beginning  to  penetrate  into  pubHc 
opinion.^ 

§  247.    Basis  of  Right  to  Punish. 

Having  established  that  (either  with  or  against  current  public 
opinion)  society  cannot  be  denied  the  right  of  self-preserva- 
tion irrespective  of  the  moral  responsibility  of  the  individual, 
the  sole  foundation  of  criminal  science,  and  of  the  agency  corre- 
sponding to  it,  must  be  social  accountability.  Yet  this  idea, 
hitherto  completely  neglected  in  the  writings  of  all  criminologists,^ 
but  on  the  contrary  frequently  given  expression  in  the  works  of 

^  FouillSe,  "Les  transformations  futures  de  la  morale,"  R.  D.  M.  (15  August, 
1888).  I  do  not  believe,  however,  that  science  should  preserve  the  "practical" 
element  in  the  conception  of  responsibility  in  regard  to  mental  habits  and  psy- 
chological survivals,  nor  do,  as  Pozzolini  among  others  (see  bibUography  in  Ferri, 
"Giusticia  p>enale,"  in  " Giurisprudenza  italiana"  (1889),  IV,  351)  those  who,  while 
adhering  "theoretically"  to  my  radical  theory  of  the  elimination  of  all  pretension 
to  distributive  justice,  admit,  however,  in  practice,  "that  the  use  of  punishment 
is  indispensable,  as  retribution  for  harm  done,  because  of  the  influence  exercised 
by  another  factor,  —  public  opinion."  But,  what  is  the  task  and  first  duty  of 
science,  if  not  to  oppose  public  opinion  when  it  is  not  in  accord  with  the  data  of 
positive  observation?  See  Ardigo,  "Coscienza  vecchia  e  idea  nuove"  —  "Em- 
pirismo  e  scienza,"  in  his  "Opere,"  Vol.  IV  (Patna,  1885),  pp.  423,  431. 

*  In  my  "La  teorica  dell'  imputabilitA,"  P.  I,  Cap.  VII,  pp.  414  d  seq.,  I  alluded 
to  social  responsibility  without,  however,  developing  the  idea,  and  without  assimi- 
lating it  into  my  system  which  was  then  imperfect,  because  it  was  tainted  with 
common  theories  and  prejudices,  and  which  has  only  now  by  a  real  a  posteriori 
evolution,  become  accurate  and  complete. 


§247]    PRESENT  FORMS  OF  DEFENSIVE  REACTION      361 

sociologists  and  medical  alienists  (Stuart  Mill,  Despine,  Fouillee, 
Maudsley,  Spencer,  Ardigo,  Lombroso,  Le  Bon,  Kraepelin,  Dally, 
Lacassagne,  MinzloflF  and  Guyau,  among  others),  would  not,  if 
left  in  its  naked  simplicity  as  they  leave  it,  be  suflScient  founda- 
tion for  a  legal  system.^  The  embryonic  idea,  so  to  speak,  of 
this  social  accountability,  implicitly  contained  in  the  remarks 
already  made,  may  be  summed  up  in  the  last  analysis  as  follows: 
that  in  the  juridico-criminal  field,  as  in  the  juridico-civil  field,  and 
the  extra-legal  field,  every  man,  always  and  in  every  case,  deter- 
mines by  each  of  his  acts  a  proportionate  social  reaction.  Men 
always  feel  the  natural  social  consequences  of  their  own  acts  for 
which  they  are  accountable  by  the  mere  fact  that  they  have  com- 
mitted them.  This  embryonic  idea  is  insufficient  for  the  con- 
struction of  a  whole  system  of  punishment,  or,  more  accurately, 
for  the  subject  of  the  function  of  defense  of  society,  so  for  this 
reason  I  reserve  for  a  little  later  the  indication  of  ulterior  criteria 
sufficient  for  the  outlines  of  such  a  system.  Still,  this  idea  is  the 
comer  stone  of  the  new  scientific  edifice;  it  is  the  supreme  rule, 
thanks  to  which,  by  excluding  from  the  legal  field  the  ethico- 
religious  criterion  of  "culpability  or  moral  responsibility,"  we 
are  in  a  position  to  give  the  only  answer  of  a  positivist  character 
to  the  "terrible  question":  "Why  may  we  impute  his  crimes  to 
a  man.'*  Why  is  he  responsible  for  them?"  Everybody  knows 
that  the  traditional  legal  philosophy  has  never  given  any  other 
answer  to  the  question  than  this:  man  is  responsible  for  his  acts 
because  of  his  moral  freedom  to  perform  them  and  in  the  meas- 
ure that  he  possesses  this  liberty.  When  this  answer  has  been 
stripped  of  any  scientific  base  by  the  negation  of  the  free  choice 
or  moral  liberty,  the  traditional  legal  philosophy  continues  none 
the  less  to  repeat  its  "delenda  Carthago":  "Explain,  then,  why 
man  is  responsible  for  his  acts  if  they  are  imposed  on  him  by  a 

^  It  gives  me  pleasure  to  say  that  the  most  complete  sociological  development 
that  I  know  of  the  principle  of  responsibility  and  of  the  idea  of  law  and  justice 
according  to  positive  philosophy  is  found  in  Robert  Ardigo,  "La  morale  dei  posi- 
tivisti  e  la  sociologia"  (Works,  Vols.  Ill,  IV).  Before  the  most  explicit,  if  not 
the  most  systematic  and  complete,  affirmance  of  the  responsibility  of  the  insane 
and  criminals  to  society,  for  acts  committed  by  them,  was  made  by  Dally  in  1863, 
in  a  celebrated  discussion  before  the  Paris  Medico-Psychological  Society,  in  which 
he  concluded,  "Man  cannot  be  morally  responsible  for  his  acts,  any  more  than 
he  is  for  his  diseases,  which  he  brings  into  life  with  him  or  which  he  subsequently 
contracts."  Dcdly,  "Considerations  sur  les  criminels  et  les  ali^nes  criminels," 
in  the  A.  M.  P.  (1863);  "Sur  la  pretendue  irresponsabilite  des  alcooliques  crimi- 
nels," B.  U.  I.  D.  P.  (1880),  p.  264;  "La  responsabiHt6  morale  et  sociale,"  A.  M.  P. 
(January,  1882). 


362  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  248 

blind,  irresistible  fatality."  Indeed,  after  all,  it  is  the  story  of  the 
egg  and  Columbus,  and  the  answer  to  this  "terrible  question"  is 
simply:  "Man's  acts  may  be  imputed  to  him  and,  hence,  he 
is  responsible  for  them  because  he  lives  in  society." 

§  248.    Imputability  and  Responsibility. 

By  imputability  and  responsibility  we  understand,  with 
Romagnosi,  the  possibihty  of  "attributing  a  given  effect  to  a 
person  as  the  cause  whereby  this  effect  is  produced";  and 
of  recognizing  such  person  as  bound  to  repair  a  given  damage 
by  responsibility,  "the  jjossibility  and  to  undergo  a  given 
penalty  by  reason  of  that  given  effect."  That  is  to  say,  that 
there  is  material  imputability  because  Titus  has  committed 
the  act,  and  social  and  juridical  imputability  because  Titus 
is  bound  to  bear  the  social  and  legal  consequences  of  his  act. 
It  is  only  too  evident  that  man  is  materially  responsible  for 
his  acts  by  the  mere  fact  that  he  Uves  in  society,  because, 
when  a  man  does  an  act,  only  another  man  can  call  him  to  ac- 
count for  it,  either  as  an  individual  or  as  the  representative  of 
society  as  a  whole.  A  man  who  does  not  live  in  society  but  alone 
in  a  desert  place  is  not  even  materially  accountable  for  his  own 
acts,  for  the  very  obvious  reason  that  there  is  no  other  man  to 
call  him  to  account.  But  man  is  also  responsible  legally  for  his 
acts  from  the  mere  fact  that  he  Uves  in  society,  since,  as  has 
already  been  said,  law  is  conceivable  and  possible  only  in  so- 
ciety. The  fact  of  living  with  other  men  is  the  sole  source  of 
man's  rights  and  hence,  also,  of  his  duties.  By  the  mere  fact  of 
no  longer  Uving  in  society  he  no  longer  has  either  rights  or  duties. 
It  cannot  be  said  that  man,  inasmuch  as  he  is  man,  "virtually" 
carries  in  himself,  in  his  own  person,  his  duties  and  his  rights, 
for  to  say  that  a  thing  exists  only  virtually  or  in  idea  amounts 
to  saying  that  it  does  not  exist.  Whatever  exists,  exists  in  act 
and  in  fact  and  the  ideal  possibility  of  its  existing  is  not  enough 
to  give  it  a  real  existence.  Man  absolutely  alone  has  really 
neither  rights  nor  duties  for  the  reason  that  rights  as  well 
as  duties,  in  the  legal  and  social  sense  (I  am  not  here  concerned 
with  religious  duties),  are  a  relation  of  man  to  man.  Hence  it  is 
not  because  man  has  a  "moral  liberty"  or  an  "ideal  liberty"  ^  or 

^  "In  a  word,  moral  legitimacy  of  pimishment  is  deduced  from  ideal  liberty 
conceived  of  as  the  principle  of  right,  and  its  social  legitimacy  from  the  common 
acceptance  of  this  ideal  by  means  of  a  contract."    Thus  Fouillee,  one  of  the  best 


§248]   PRESENT  FORMS  OF  DEFENSIVE  REACTION      363 

a  "relative  liberty"  of  action  that  he  is  legally,  that  is,  socially, 
accountable  or  responsible  for  his  actions :  it  is  only  because,  from 
the  moment  that  he  lives  in  society,  every  one  of  his  acts  produces 
efiFects,  both  individual  and  social,  which  rebound  from  the  sur- 
rounding society  upon  the  individual  himself.  He  therefore, 
necessarily  and  inevitably,  by  the  mere  fact  that  he  lives  in  society, 
must  feel  and  bear  these  effects  which  are  good  and  useful  for  him 
when  his  acts  have  been  good  and  useful  for  society  and  which 
are  harmful  and  evil  for  him  when  his  acts  have  been  harmful 
and  evil  for  society.  As  Holmes  has  well  said  in  relation  to  civil 
responsibility  (and  in  our  view  it  is  also  appUcable  to  penal  respon- 
sibihty):  "The  law  of  torts  abounds  in  moral  phraseology. 
It  has  much  to  say  of  wrongs,  of  malice,  fraud,  intent  and 
negligence.  Hence,  it  may  naturally  be  supposed  that  the  risk 
of  a  man's  conduct  is  thrown  upon  him  as  the  result  of  some 
moral  short-coming.  But  while  this  notion  has  been  enter- 
tained, the  extreme  opposite  will  be  found  to  have  been  a  far 
more  popular  opinion;  I  mean  the  notion  that  a  man  is 
answerable  for  all  the  consequences  of  his  acts,  or,  in  other 
words,  that  he  acts  at  his  peril  always,  and  wholly  irrespective 
of  the  state  of  his  consciousness  upon  the  matter."^  There  is, 
therefore,  only  one  means  by  which  man  ceases  to  be  responsible 
for  his  acts;  that  means  is  to  renounce  all  society.^  In  this 
sense,  one  might  say  in  returning  almost  to  Rosseau  with 
Renonvier  and  with  Fouillee,  that  social  responsibihty  in  a 
fashion  has  its  base  in  the  contractual  acceptance  of  life  in  com- 
mon: yet  this  element  of  contract  is  so  infinitesimal  and  even, 
so  to  speak,  so  negative  (since  man  is  placed  by  fate  in 
society  and  cannot  carry  out  all  his  desires)  that  it  cannot  be 
taken  as  the  basis  of  a  sociological  system,  whatever  may  be 
its  influence  upon  particular  problems  of  sociology.  All  of 
this  amounts  to  what  is  the  first  declaration  upon  which  the 
positivist  criterion  of  responsibility  rests,  namely,  that  every 
man  is  always  responsible  for  every  anti- juridical  act  performed 
by  him,  solely  because  and  in  the  measure  that  he  lives  in  society. 

philosophers  of  law,  expresses  himself,  which  reveals  the  tendency  to  eclecticism 
which  always  destroys  some  of  the  force  of  a  thought  and  lessens  originality, 
when  it  does  not  overcome  truth. 

'  Holmes,  "The  Common  Law,"  p.  79. 

'  I  have  applied  this  general  principle  to  aid  in  suicide  or  homicide  with  ctm- 
sent  in  "Omicidio-suicidio,"  4th  ed.  (Turin,  1895). 


CHAPTER  V 

ECLECTIC   THEORIES   OF   RESPONSIBILITY 

Relative  freedom  of  will;  limited,  ideal,  practical.  Liberty  of  intelligence. 
Volmitariness.  Intimidability.  Normality.  Personal  identity  and  social 
resemblance.     State  of  criminality.     Conclusion. 

§  249.    Necessity  and  Free  Will. 

One  of  the  other  two  theories  which  radically  differ  on  the 
fundamental  principle  of  responsibihty  is  the  criterion-measure 
theory.  On  the  one  hand,  there  is  the  classical  theory  which 
places  this  principle  exclusively  in  the  individual  who  acts,  re- 
quiring as  constituents  of  his  penal  responsibility,  not  only  what 
goes  without  saying,  the  physical  responsibility,  which  he  incurs 
as  the  material  author  of  the  crime,  but  also  moral  responsibility, 
in  that  he  is  the  "intelligent  and  free"  author  of  it,  as  Roma- 
gnosi  said  a  century  ago,  and  as  all  the  classical  criminalists 
have  since  repeated.  It  is  true  that  Romagnosi,  the  most  posi- 
tivistic  mind  among  the  classicists,  said  that  moral  responsibility 
is  the  condition  and  not  the  measure  of  penal  responsibility.^ 
The  conunon  classical  theory  has  not  followed  that  great  master 
in  this  particular,  since  his  criterion-measure  or  criminal  impul- 
sion rendered  the  solution  of  juridico-criminal  theorems  in  the 
matter  of  responsibihty  less  easy  and  less  diagrammatic.  For 
this  reason,  doctrine,  legislation,  and  decisions  have,  on  the  con- 
trary, followed  what  I  will  term  the  criterion-measure  of  respon- 
sibility, because  it  is  of  quicker  application  and,  moreover,  offers 
those   appearances   of   mathematical   proportions   which   are   so 

1  Romagnosi,  "Genesi  del  diritto  penale."  There  can  be  no  penal  responsi- 
bility without  moral  imputability  —  But  should  the  former  always  be  in  pro- 
portion to  the  latter?  The  habit  of  weighing  the  merit  or  demerit  of  human  acts 
by  rules  of  subjective  morality  often  results  in  the  substitution  of  the  responsi- 
bility of  conscience  for  that  of  common  safety.  But  can  legal  reason  and  poUtics 
permit  such  a  substitution?  —  Every  one  knows  political  responsibility  differs 
from  moral  responsibility,  and  why  should  the  latter  alone  be. used  to  measure  the 
duty  of  those  who  defend  and  insure  public  safety?  (§§  527,  600).  "Moral  imputa- 
bility by  itself  serves  only  to  show  when  not  how  nor  to  what  degree  punishment  can 
and  must  be  inflicted  "  (§  1333). 

364 
V 


§249]    ECLECTIC  THEORIES  OF  RESPONSIBILITY         365 

easily  mistaken  for  the  rules  of  justice.  This  dosimetry,  as 
Mario  Pagano  ^  with  childlike  candor  said  a  hundred  years  ago, 
would  consist  in  this,  that  when  the  plentitude  of  Uberty  and 
intelligence  exists,  or  is  supposed  to  exist,  in  a  criminal  his  moral 
responsibiUty  and  his  penal  responsibility  are  equally  complete; 
and  vice  versa,  if  Uberty  or  intelligence  be  totally  lacking  in  the 
agent,  his  moral  and  penal  responsibiUty  is  null;  if  intelligence  or 
liberty  be  lacking  in  the  proportion  of  a  quarter,  a  third  or  a  half, 
in  the  same  way  the  moral  and  penal  responsibility  diminishes 
by  a  quarter,  a  half  or  a  third.  Nothing  has  greater  arith- 
metical symmetry  and  nothing  is  more  absurd  from  the  psycho- 
logical point  of  view,  just  as  it  was  at  one  time  assumed  that  man 
could  be  partiaUy  insane  and  that  in  his  brain  insanity  and  reason 
lived  together  as  good  neighbors  in  two  distinct  apartments. 
In  the  same  way  it  is  assumed  that  in  the  will  of  man  necessity 
and  Uberty  coexist  in  separate  apartments.  As  I  have  already 
said,  nothing  is  more  dangerous  from  the  social  point  of  view  be- 
cause while  every  diminution  of  the  alleged  moral  responsibility 
actually  coincides  with  an  increase  of  danger  to  society  from  the 
individual  who  misconducts  himself  through  lack  of  normal  in- 
telligence and  wiU,  such  lack  involves  for  him  a  diminished  penal 
responsibility,  with  the  consequence  that  the  defense  (of  society) 
diminishes  or  disappears  as  the  peril  increases.  StiU,  I  repeat, 
this  common  theory  of  moral  responsibiUty  as  the  condition  and 
measure  of  penal  responsibility  afforded  too  easy  an  applica- 
tion and  too  great  an  appearance  of  logical  symmetry  not  to 
compel  the  unanimous  assent  of  the  classical  criminalists.  We, 
on  the  contrary,  relying  upon  the  new  data  of  biology  and  crim- 
inal sociology,  offer  a  positive  theory  of  responsibility  radically 
opposed  to  the  foregoing.  In  our  theory  punishability  or,  more  ac- 
curately, society's  defense  against  criminals,  still  has  its  root  in  the 
individual  considered  as  the  material  author  of  a  crime  which  is 
the  index  of  his  physio-psychological  personality  reacting  against 
the  physical  and  social  environment.  Hence,  the  objection  made 
by  some  metaphysical  critics  is  childish,  —  that  it  is  absurd  to 
speak  of  social  accountability  since  accountability  can  only  be 
individual;  as  if  in  speaking  of  social  accountability  we  meant  the 
accountability  of  "society,"  and  not  that  "of  the  individual  in 
relation  to  society."  Yet  the  reason  of  this  accountability  in  the 
individual  for  crimes  committed  by  him  does  not  depend  solely 
^  Pagano,  "I  principii  de  codice  penale,"  §  1. 


366  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  251 

upon  his  personal  conditions;  and,  hence,  his  moral  responsibility 
is  not  a  condition  of  his  penal  accountability,  which  depends  upon 
the  sole  fact  that  the  individual  lives  in  society. 


§  260.    Development  of  Rights. 

Outside  of  social  life  there  are  neither  rights  nor  duties.  Every 
right  represents  a  conquest  and  daily  struggles  have  been  neces- 
sary for  its  recognition.  Hence,  while  the  metaphysical  partisans 
of  a  "natural  law"  eternal  and  absolutely  antecedent  to  society 
and  the  State  charge  positivists  with  undermining  every  solid 
foundation  of  individual  rights,  we  maintain  that  only  the  posi- 
tivist  and  relative  conception  of  these  rights,  as  an  historical 
conquest,  spurs  pubUc  consciousness  in  the  struggle  to  conquer 
new  rights  and  encourages  and  strengthens  us  with  the  convic- 
tion that  as  the  law  of  to-day  is  advanced  over  that  of  yesterday, 
so  the  law  of  tomorrow  must  certainly  also  change  and  progress 
beyond  the  law  of  to-day.  Every  act  of  the  indi\adual  induces  a 
corresponding  reaction  on  the  part  of  society.  If,  therefore,  the 
individual  act  concerns  the  juridical  order,  these  sanctions  take 
a  juridical  or  legal  form  and  the  individual  as  the  material  author 
of  an  act  answers  for  it  to  society  independently  of  his  moral 
fault. 

§  261.    Eclectic  Theories  of  Punishability. 

Indeed,  the  conditions  of  the  act,  the  agent,  and  society  influ- 
ence the  form  of  the  legal  sanctions  and,  hence,  fiu-nish  ^  a  meas- 
ure of  the  social  or  juridical  responsibiUty  of  the  criminal  because 
the  social  reaction  must  correspond  to  the  individual  act;  — the 
defense  must  be  proportionate  to  the  ofTense.  In  the  meantime, 
the  principle  and  reason  of  penal  responsibility  are  clearly  drawn 
by  these  two  opposed  theories:  the  ethical-indi\'idual  theory  of 
the  classical  school  and  the  juridico-social  theory  of  the  positivistic 
school.  Intermediate  between  these  two  opposite  theories,  which 
are  radical  because  logical  and  as  such  the  only  ones  theoretically 
possible,  there  have  sprung  up,  under  the  guise  of  transitions  or 
compromises,  various  eclectic  theories  according  to  which  the 
criminal  is  morally,  and  therefore  penally,  responsible  because 
there  is  found  in  him  or  in  his  act  the  following  characteristics. 

»  See  Chap.  VI,  VII,  post. 


§252]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  367 


Relative  Liberty 
of  the  will 


Limited.  —  EUero,  Tolomei,  Buccelati,  Canonico,  Brusa, 
Pessina,  Bovio,  Prius,  Rolin,  Joly,  Krafft- 
Ebing,  Ziino,  Riant,  Garraud,  etc. 

Ideal.  —  Fouillee,  Siciliani,  Waatrain-Cavaganari,  by  the 
personal  factor  —  Levy-Bnihl,   Magri,   Moriand. 

Practical.  —  Salleilles,  Pozzolini. 


Liberty  of  the  f  Kleinschrod,  Halschner,  Bemer,  Schiitze,  HoltzendorflF,  Vida, 

Intelligence  \      Conti,  Laurent. 

.J  i  Penal  Codes  of   Spain,  Hungary,  Italy,  Draft  of  the  Russian 

Voluntariness  <      t>      ^  t^  a     v>  ■ 

[      renal  Code,  Beausaire. 

Intimidability.  —  Dubuisson,  Impallomeni,  Alimena,  Cuche,  Lanza. 

Normality.  —  Poletti,  Liszt. 

Personal  Identity  and  Social  Resemblance.  —  Tarda. 

State  of  Criminality.  —  Poustoroslew. 

§262.    Eclectic  Theories  of  Responsibility.    Limited  Relation.    Liberty  of 

the  Will. 

There  is,  as  one  may  see,  a  progression  in  these  eclectic  theories 
which  extends  from  the  most  spontaneous,  like  the  adaptation  and 
reduction  of  the  classical  criteria  of  the  free  A\dll  and  free  intelli- 
gence, to  the  most  ingenious  and  indirect  theories,  such  as  the 
more  or  less  original  invention  of  criteria  different  from  the  tra- 
ditional.^ Indeed,  at  the  start  they  began  to  recognize  that 
the  new  data  of  biology  and  criminal  sociology  removed  in  part 
the  illusion  of  an  absolute  and  unhmited  moral  liberty  in  man,  and 
thus  destroyed  his  absolute  moral  responsibility.  But  under  the 
influence  of  this  preconceived  idea  that  there  is  no  penal  account- 
abiUty  without  moral  responsibihty,  there  has  been  unwillingness 
to  concede  that  the  physio-psychological  hereditary  conditions 
of  the  individual  combined  with  the  pressure  of  the  environ- 
ment could  ever  completely  destroy  the  moral  liberty,  or  free  will 
of  man.    This  volitional  freedom,  they  say,  may  be  in  fact  sUght; 

1  I  have  not  been  able  to  include  the  theory  of  SUio  y  Cortes,  "La  crisis  del 
derecho  penal"  (Madrid,  1891),  Chap.  I,  which  is  an  acceptance  of  the  positive 
principle  of  social  defense  as  the  reason  of  individual  responsibility  and  punibility, 
with  reservations  in  favor  of  free  will. 

It  is,  therefore,  an  eclectic  theory,  for  Silio  accepts  and  develops  with  much 
eloquence  the  deductions  of  the  positive  school,  preserving  at  the  same  time  as  a 
sort  of  addenda  unconnected  by  any  organic  tie  to  the  rest  of  his  ideas,  the  belief 
of  free  will.  This  is  a  more  or  less  conscious  concession  to  the  spiritualism  still 
dominant  in  Spain,  just  as  Spencer's  "unknowable"  was  a  concession  to  the  deistic 
spiritualism  in  England. 

The  same  can  be  said  of  De  Baets,  "  Une  question  touchant  le  droit  de  punir," 
in  the  "Revue  neo-scholastique"  (Feb.  1897),  when  a  professor  in  the  Catholic 
University  of  Louvain  accepted  the  data  of  criminal  anthropology,  but  made  it 
accord  (?)  with  free  will,  as  he  stated  in  so  many  words  before  the  Anthropologico- 
criminal  Congress  at  Geneva,  A.  C.  A.  C.  (1897),  p.  310. 


368  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  253 

but  there  is,  must  always  be,  a  fragment  of  it  in  man,  and  it  must 
be  that  he  chooses  evil  because  otherwise  the  lapse  into  fatalism 
and  responsibiUty  becomes  imp>ossible.  We  no  longer  require  a 
meter  of  it  as  heretofore;  but  it  is  convenient,  it  is  indispensable, 
that  we  should  have  a  centimeter  or  a  millimeter  of  it. 

This  expedient  is  evidently  as  convenient  as  it  is  untenable:  once 
entangled  on  the  slope  of  concessions  to  determinism  against  the 
absolutism  of  free  choice,  one  is  no  longer  able  to  stop  at  half  or 
two-thirds  of  the  distance  in  order  to  salvage  a  sHght  remnant  of 
this  liberty  of  will.  One  must  go  through  to  the  end  and  "hmited 
liberty"  is  a  logical  and  psychological  absurdity,  because  one  is 
unable  to  see  why  these  individual  exterior  conditions  which 
may  suppress  one-  or  two-thirds  of  the  free  choice  would  never 
(aside  from  obvious  cases  of  insanity)  be  sufficient  to  suppress  it 
altogether.  This  is  why  Carrara,  with  his  powerfully  logical 
and  systematic  mind,  very  clearly  saw  the  conclusions  to  which 
one  is  unavoidably  brought  from  the  moment  that  one  becomes 
involved  on  the  descent  of  concessions  to  natural  determinism, 
and  he  went  to  his  grave  without  having  made  any  concession 
to  the  new  theories,  encasing  himself  with  inflexible  obstinacy 
in  the  impenetrable  armor  of  his  absolute  syllogisms. 

§  263.    Eclectic  Theories  of  Responsibility :  Ideal  Liberty. 

Others  have  added  to  this  more  convenient  conception  of  a 
simple  quantitative  limitation  of  volitional  liberty  other  con- 
cepts of  a  freedom  that  is  always  relative,  also,  but  qualitatively 
diflFerent.  Thus  Fouillee  speaks  of  an  "ideal  Uberty"  progres- 
sively formed  and  developed  as  an  idea-force  which  alone  pro- 
duces "the  moral  legitimacy  of  punishment;  for  the  reason,  as 
Siciliani  said  after  him,  "that  man  is  not  free  but  becomes  free."  ^ 
There  is  no  need  to  show  at  length  the  theoretical  and  more  par- 
ticularly the  practical  insufficiency  of  such  a  criterion.  How  is 
it  to  be  decided  whether  a  man  in  the  commission  of  a  crime  had 
or  had  not  the  "idea  of  his  own  freedom"?  When  one  studies 
criminals  in  the  flesh  and  not  in  the  imagination  it  seems,  indeed, 
that  they  have  not  this  "idea  of  their  own  moral  Uberty  ";  in  fact, 
they  almost  always  admit  that  they  have  been  drawn  to  crime, 
powerless  to  resist  the  impulse  of  vengeance,  cupidity,  or  luxury, 

*  FouUUe,  "La  science  sociale  contemporaine,"  "La  liberie  et  le  determinisme"; 
Siciliani,  "Le  questioni  contemporanee  e  la  liberty  morale";  Wantrain-Cavagnari, 
"L'ideale  del  diritto"  (Genoa,  1883). 


§253]    ECLECTIC  THEORIES  OF  RESPONSIBILITY         369 

or,  in  the  ultimate  hypothesis,  divine  will.  In  such  admission, 
they  do  not  mean  to  seek  an  excuse  or  a  pretext  for  immunity. 
On  the  contrary,  to  the  same  extent  that  they  are  conscious  of 
their  own  powerlessness  to  resist  criminal  impulsion,  they  are 
conscious  of  the  right  of  society  to  punish  them,  "I  did  wrong: 
I  have  been  taken  in  it:  I  must  pay  for  it":  such  is  the  answer 
made  to  me  by  more  than  a  hundred  convicts,  especially  recidi- 
vists who,  however,  add  that  on  other  occasions  "they  have  had 
more  luck."  This  answer  has  a  great  psychological  value,  since 
it  was  not  an  hypocritical  and  egotistical  pose  to  ehcit  pity  or 
protest  against  the  sentence:  quite  the  contrary,  they  concede 
its  justice  although  this  "idea  of  moral  freedom"  imputed  to 
them  by  theoretical  philosophers  does  not  in  the  least  illuminate 
their  conscience.^  Even  conceding  that  there  exists  in  criminals 
an  "ideal  liberty  which  is  formed  progressively,"  how  is  its  inten- 
sity and  range  to  be  measured  when  their  moral  responsibility, 
hence  their  punibility,  depends  on  its  greater  or  lesser  power? 
It  is  unnecessary  to  add  that  this  "ideal  liberty"  has  some  resem- 
blance to  the  Uberty  "of  an  intelligible  character"  of  which  Kant 
and  Schopenhauer  speak,  who,  after  the  denial  of  all  moral  liberty 
"of  an  empirical  character"  in  man,  in  the  actual  world  of  phe- 
nomena, and  in  "practical  reason,"  invented  in  the  world  of  nou- 
mena  and  in  "pure  reason"  an  "intelligible  character,"  in  which 
should  be  found  an  ideal  liberty  of  man.  These  are  transcendental 
concepts,  ingenious  creations,  which  denote  a  great  wealth  of 
logical  and  philosophical  imagination  but  which  are  devoid  of 
any  positive  reality.  Another  opinion  which  still  retains  a  cer- 
tain residue  of  moral  liberty  in  man  represents  this  liberty  under 
the  form  of  what  might  be  called  the  "personal  factor,"  —  a  factor 
which  concurs  in  every  voluntary  deliberation,  in  deciding  one  way 
or  the  other  the  conflict  between  the  internal  motives  and  the 
external  circumstances.  Thus,  for  example.  Levy  Bruhl,  after 
noting  that  responsibility  has  an  objective  aspect  (in  part  cor- 
responding to  what  we  call  social  accountability)  and  a  subjective 
aspect  (moral  responsibility),  and  after  intelligently  analyzing 
both,  admitted  that  the  objective  accountabihty  of  each  one  for 
his  own  acts  is  sufficient  for  social  life.  Moreover,  he  insists  on 
the  necessity  of  dividing  the  notion  of  responsibility,  retaining  in 
penal  legislation  only  the  notion  of  a  purely  objective  accounta- 
bihty.    Thus  far  he  is  in  perfect  agreement  with  the  positivists; 

^  Ferri,  "Atlante  antropologico  e  statistico."    On  "  L'Omicidio, "  pp.  139  et  seq.; 
4upra. 


370  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  253 

but  he  superadds  a  subjective  responsibility  to  the  objective 
accountability  because  "it  is  to  man  considered  in  the  essence 
of  his  personaUty  that  decisions  affecting  him  should  be  made  to 
relate."  ^  However,  he  avows  himself  that  of  this  subjective 
responsibihty,  "we  can  give  but  a  symbolical  representation  and 
not  a  notion  properly  so  called."  But  this  supposed  need  of  a 
subjective  responsibihty  as  an  antecedent  and  condition  of  ob- 
jective responsibihty,  is  still,  without  speaking  of  other  objec- 
tions, an  equivocation.  Since  it  is  an  error  to  say  that  the  norm  of 
absolute  ethics  "evil  deserves  evil"  is  an  antecedent  of  the  rule  of 
positive  law  requiring  the  punishment  of  crime,  because  on  the  con- 
trary it  is  from  the  experience  and  memory  of  these  social  commu- 
nal positive  rules  (defense-vengeance)  that  men  draw  the  abstract 
and  symbohcal  idea  of  this  normal  rule,  —  so,  also,  is  the  ab- 
stract idea,  or  metaphysical  symbol  of  subjective  responsibihty 
drawn  from  the  experience  of  objective  accountability.  It  is, 
therefore,  not  true  that  morals  precede  social  life  nor  that  subjec- 
tive responsibility  precedes  objective  accountabihty.  Precisely 
the  contrary  is  true,  for,  as  Mara  said  in  controverting  Hegel,  it 
is  not  the  idea  which  determines  reahty;  the  real  conditions  of 
life  determine  consciousness  and  ideas.  The  defensive  and  aveng- 
ing reaction  against  every  act  contrary  to  the  conditions  of  indi- 
vidual and  social  existence  is  the  primitive  fact  inseparable  from 
all  life  in  society,  even  among  the  animals.^     It  is,  therefore, 

^  L6vy-Bruhl,  "L'idee  de  la  responsabilite,"  p.  105.  To  the  same  effect,  Mo- 
riand,  "La  question  de  la  liberte  et  la  conduite  humaine"  (Paris,  1897),  p.  200, 
concluded  "The  basis  of  responsibility  is  the  entity  ("6tre");  a  man  is  responsi- 
ble because  he  is  a  man,  seeing  that  he  is  a  self-existent  something."  Conse- 
quently, "there  is  in  every  free  (?)  man,  some  other  basis  for  responsibility  ovct' 
and  above  free  will." 

*  "The  instinct  (connected  with  that  of  self-preservation)  after  having  created 
the  complex  system  of  penalties  and  rewards  is  now  fortified  by  the  very  existence 
of  this  system.  Men  have  not  been  slow  to  recognize  when  they  offended  others 
that  in  a  certain  fashion  they  must  expect  to  suffer  repression;  thus  a  natural 
and  rational  association  (already  pointed  out  by  the  English  psychologists)  was 
established  between  the  given  conduct  and  its  corresponding  chastisement.  In 
the  "Revue  philosophique"  (Apr.  1885),  Delbceuf  reported  a  curious  example 
of  a  similar  association  in  an  animal.  "A  small  dog  was  carried  into  a  certain 
part  of  the  garden  and  whipped  every  time  it  jumped  on  a  certain  desk.  This 
system  of  education  corrected  its  fault  but  sometime  afterward  it  again  jumped 
on  some  furniture  but  immediately  raced  out  to  the  place  where  it  had 
been  whipped  before  and  awaited  there  in  a  comical  attitude  of  remorse  and  ex- 
pectancy." Romanes  reports  similar  incidents.  Guyau,  "Esquisse  d'une  morale 
sans  obUgation  ni  sanction." 

This  fact,  which  is  characteristic  to  the  psychologist  and  which  seems  to  be  an 
insignificant  anecdote  for  all  those  who  have  no  feeling  for  scientific  experiment. 


§254]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  371 

the  material  base  and  real  determinant  of  the  norms  of  morality. 
From  those  norms,  the  fact  receives  no  justification:  it  still  con- 
tinues to  be  a  fact  when  juridical  science  renounces  any  idea  of 
subjective  responsibility,  just  as  it  continues  to  be  a  fact  after  the 
renunciation  by  criminal  science  of  the  rule  that  evil  deserves 
evil,  without  any  noticeable  scientific  moral  or  social  upheaval. 

§264.    Eclectic  Theories  of  Responsibility:  Practical  Freedom. 

More  recently,  it  has  been  thought  possible  to  rest  responsi- 
bility, I  would  not  say  upon  a  theory,  but  upon  an  eclectic  ex- 
pedient, by  saying  that  penal  justice  has  an  adequate  "positive" 
base  in  what  might  be  called,  in  accordance  with  public  opinion, 
"the  practical  hberty"  of  individuals.  Just  as  the  crowd,  that 
is  to  say,  pubHc  opinion  created  by  traditional  prejudices  and 
mental  habits,  holds  man  responsible  because  in  practice  he  is 
able  to  abstain  from  committing  crime  and  because  it  always  con- 
siders punishment  as  retribution  for  a  fault,  so,  also,  criminal 
science  and  those  who  exercise  the  penal  function  are  powerless 
to  embrace  the  more  logical  (if  more  difficult  of  popular  com- 
prehension) criterion  of  social  and  objective  accountability  pro- 
posed by  the  positivist  school.  It  was  Saleilles  who,  reproducing 
and  developing  an  objection  by  Liszt,^  offered  this  expedient 
and  it  has  received,  I  know  not  how,  the  assent  of  a  young  Italian 
positivist.^  In  a  work  on  the  individualization  of  punishment, 
which  made  the  passing  stir  in  the  scientific  world,  such  as  efforts 
toward  eclectic  conciliation  always  do,  by  flattering,  without  too 

is  similar  to  that  which  I  have  reported  as  happening  to  Ardigo,  in  "Negazione 
del  libero  arbitrio,"  p.  417.  A  dog  which  bothered  its  master  in  the  dining-room 
was  whipped  by  him  several  times  in  succession  each  time  that  the  cloth  was 
laid  for  dinner,  with  the  result  that  without  even  being  struck  the  dog  knew  im- 
mediately, as  soon  as  he  saw  the  table-cloth,  through  a  natural  psychic  association. 
Brehm,  "La  vita  degli  animali"  (Turin  1872),  I,  214,  354,  remarked  the  same  on 
the  subject  of  a  leopard,  which  entered  its  cage  only  when  it  was  sprinkled  with 
fresh  water  and  "finally  he  would  reenter  it,  although  apparently  with  repugnance, 
whenever  he  saw  a  garden  hose."  Compare  here  my  observations  on  the  psychol- 
ogy of  punishment  which  is  very  efl5cacious  when  it  gives  the  concrete  sensation  of 
imminent  pain,  while  it  has  little  effect  as  the  abstract  idea  of  a  distant  pain. 
See  also  "Omicidio,"  p.  20,  §§  251  et  seq. 

1  Liszt,  "Die  strafrechtliche  Zurechnungsfahigkeit,"  Z.  G.  S.  (1896),  p.  70,  an 
address  before  the  International  Congress  of  Psychologists  at  Munich,  Augiist, 
1896. 

*  SaleiUes,  " L'individualisation  de  la  peine";  FozsoKm,  "Bases  para  una  teoria 
positiva  de  la  responsabilidad  penal,"  in  the  "Revista  general  de  legislacion  y 
jurisprudencia"  (June,  1899),  and  in  "In  onore  di  Francesco  Carrara"  (Lucques, 
1899). 


372  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  C§  ^55 

greatly  compromising  himself,  the  traditionalism  hostile  to  novelty 
and  those  eager  for  innovation,  Saleilles  said:  "the  good  in  the 
classical  system  is  in  its  principle  (or  moral  and  subjective  re- 
sponsibility) and  the  evil  lies  in  the  conclusions  that  are  drawn 
from  it;  whereas,  inversely  in  the  p)ositivist  system  many  of  the 
conclusions  are  attractive  and  almost  convincing,  while  the  prin- 
ciple frightens  us."  This  last  word  is  an  involuntary  revelation  of 
the  terror  and  hatred  of  novelty  which  caused  Saleilles  to  imagine 
that  he  could  construct  a  paradoxical  kind  of  scientific  organism 
by  applying  the  principle  of  the  classical  school  to  the  conclusions 
of  the  positivist  school.  It  is  needless  to  demonstrate  at  length 
that  the  "popular  conception  of  resp)onsibility "  cannot  be  the 
base  of  a  scientific  theory  because  there  would  never  be  any  scien- 
tific progress  if  the  existing  state  of  public  opinion,  or  traditional 
prejudice,  should  offer  a  barrier  to  theoretical  innovations  brought 
about  by  the  study  of  facts. 

§  266.    Error  of  Subjecting  Science  to  State  of  Popular  Opinion. 

When  Pozzolini,  who  admits  that  my  theory  of  social  account- 
ability affords  an  ideal  system  of  justice  for  the  future,  suggest- 
ing only  that  the  popular  conception  of  moral  retribution  be  not 
abandoned  in  punishment,  and  who  declares  that  theory  is  "really 
positive,"  he  unconsciously  confuses  positivism  with  empiri- 
cism. When  Franck,  quoted  by  Van  Buri  ^  and  referred  to  by 
Pozzolini,  says  that  "the  movement  for  the  reform  of  penal  law 
will  be  careful  not  to  totally  abandon  the  idea  of  reparation  or  of 
expiation  founded  on  non-determinism,  because  this  idea  in  the 
actual  state  of  public  opinion  cooperates  with  it  in  the  attain- 
ment of  its  higher  object,  —  the  social  effiacy  of  penal  law,"  we 
reply  that  herein  is  error  and  illusion.  The  error  is  in  subordinat- 
ing the  conclusions  of  science  to  the  actual  state  of  pubhc  opinion, 
just  as  if  Pinel  in  his  great  reformation  of  practical  psychiatry  had 
said:  the  insane  are  truly  diseased  and  not  wicked,  but  as  the 
"actual  state  of  public  opinion,"  or  rather  the  "popular  concep- 
tion" of  insanity,  is  that  they  are  wicked,  psychiatry  should  not 
totally  abandon  the  idea  of  punishment  inflicted  upon  the  insane, 
since  the  medical  treatment  given  them  represents  only  the 
"ideal  state  of  the  psychiatry  of  the  future."  Further,  a  Saleilles 
of  that  time  would  have  preserved  the  principle  of  traditional 

*  Van  Buri,  "Questioni  ddla  imputabiliUk,"  in  "Revista  penal"  (April,  1898), 
p.  339. 


§§  ^56,  257]  ECLECTIC  THEORIES  OF  RESPONSIBILITY  373 

psychiatry,  and  would  have  asserted  that  the  insane  are  respon- 
sible for  their  mental  alienation  but  should  be  cared  for  con- 
formably with  the  "consequences"  of  the  new  scientific  psychiatry 
and  treated  as  patients.  Substitute  the  insane  for  criminal  and 
psychiatry  for  penal  justice,  and  the  eclectic  expedient  appears 
in  all  its  beauty,^  Besides  this  palpable  error,  there  is  an  illu- 
sion in  the  empirical  respect  for  traditional  prejudice.  It  is  an 
illusion  to  believe  that  one  thus  favors  the  "social  efficacy  of 
penal  law"  (Franck)  and  that  one  thus  "gives  a  foundation  of 
justice  to  criminal  sociology"  (Saleilles).  How  can  a  social  func- 
tion be  efficacious  when  guided,  not  by  scientific  truth  based  on 
the  natural  origin  and,  hence,  on  the  efficacious  remedies  for  crime, 
but  rather  by  empirical  prejudice?  Have  we  not  learned  from 
the  experience  of  centuries  of  bloody  and  sterile  inefficiency  of 
a  penal  law  based  on  the  idea  of  reparation  or  expiation  of  faults? 
This  is  equivalent  to  saying  that  modern  medicine,  while  retain- 
ing the  popular  prejudice  on  epidemic  diseases,  would  see  the 
efficacy  of  its  methods  increased  by  those  advances  which  have 
only  become  possible  through  Pasteur's  discoveries  of  pathogenic 
microbes  founded  on  scientific  data. 

§  256.    Exigencies  of  the  Idea  of  Justice. 

As  to  the  justice  which  should  temper  the  conclusions  of  crim- 
inal sociology,  it  will  always  be  necessary  to  ask  as  it  has  already 
been  asked:  ^  What  are  these  "exigencies  of  the  idea  of  justice"? 
What  is  just  and  what  is  unjust?  Who  can  measure  the  subjec- 
tive responsibility  of  the  offender  and  meet  it  with  a  just  and 
proportionate  penalty  as  reparation?  Once  more  then,  there  is 
no  other  solution  for  the  problem  than  to  abandon  courageously 
every  prejudice  from  the  moment  that  its  error  is  demonstrated 
and  to  realize  that  public  opinion  always  ends  in  accepting  and 
yielding  to  scientific  truths.  This  is  what  it  did  in  the  case  of  the 
insane,  after  Pinel,  and  this  is  what  it  will  do  in  the  case  of  criminals. 

§257.    Eclectic  Theories  of  Responsibility:  Freedom  of  Intelligence. 

Such  are  the  eclectic  theories  of  responsibility  which  are  less 
removed  than  others  from  the  pure  classical  theory.  They  all 
come  back,  under  a  form  in  which  phantasy  plays  a  greater  or 

'  In  the  same  sense,  DrUl,   "Les  fondements  de   la   responsabilit6  penale," 
A.  C.  A.  C.  (Geneva,  1897),  p.  67. 

2  "Annee  sociologique"  (1899),  II,  3,  64. 


374  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  257 

lesser  part  to  the  moral  or  volitive  liberty,  presenting  it,  it  is 
true,  as  relative,  by  limiting  or  making  a  travesty  of  the  moral 
liberty  which  in  the  traditional  science  and  in  common  sentiment 
constituted  the  most  characteristic  and  essential  condition  and 
measure  of  moral  and  penal  responsibility.  Yet  the  inevitable 
homage  to  the  new  scientific  proofs  in  physio-psychology  has  taken 
a  little  more  radical  form,  especially  among  the  German  criminolo- 
gists in  an  eclectic  theory,  wherein  it  has  been  sought  to  avoid  the 
diflBculty  by  peremptorily  excluding  one  of  the  two  traditional 
pivots  of  moral  responsibiUty,  the  free  will,  and  retaining  the  other 
less  uncertain  and  less  disputed,  namely,  the  intelligence.  This 
is  the  intellectualist  theory  first  sketched  by  Spinosa,  then  by 
Schopenhauer,  and  recently  taken  up  by  Schinz.^  I  myself 
adopted  it  in  the  second  part  of  "La  teoria  dell'  imputabilita  e 
la  negazione  del  libero  arbitrio,"  and  notwithstanding  that  I 
later  discarded  it  (except  the  criterion  of  motives  determining 
action),  a  certain  critic  has  continued  to  combat  it,  as  a  definitive 
expression  of  my  thought.^  Indeed,  the  conditions  of  the  intelli- 
gence, reason  or  consciousness,  to  the  extent  that  man  knows  the 
relations  of  things  and  the  material,  social,  and  legal  consequences 
of  his  own  acts,  can  be  neglected  neither  by  the  legislator,  the 
judge,  nor  the  criminal  sociologist.  The  misapprehension  in  this 
theory  is  first  of  all  that  the  intellectual  (and  general  psycho- 
logical) conditions  should  be  one  of  the  criteria,  but  not  the  essen- 
tial principle  of  penal  responsibility.  Whether  the  criminal  has  an 
approximately  normal  intelligence,  or  whether  his  reason  or  con- 
science are  obscured,  distorted,  or  stifled  by  physiological  condi- 
tions (such  as  youth  or  intoxication)  or  by  pathological  conditions 
(such  as  insanity  or  somnambulism),  assuredly  this  is  of  great 
importance  in  applying  the  most  suitable  form  of  defensive  social 
reaction  to  the  agent  who  has  accomplished  the  act  under  such 
conditions.  Where  the  murderer,  robber,  or  incendiary  is  afflicted 
with  a  clinical  form  of  insanity  (conceding  that  the  material  condi- 
tions of  the  act  and  the  damage  caused  are  exactly  the  same)  cer- 
tainly there  should  be  a  different  form  of  reaction  against  him 
than  in  the  case  of  an  adult  or  minor  criminal  by  congenital  ten- 
dency or  where  he  is  impelled  to  the  crime  by  an  acute  or  chronic 

*  Schinz,  "Morale  et  d6terminisme,"  R.  P.  (January,  1895). 

*  Gabelli,  "La  nuova  scuola  di  diritto  penale  in  Italia,"  in  the  "Nuova  antolo- 
gia"  (16  August,  1885);  see  Lombroso,  Ferri,  Garofalo,  Fioretti,  "Polemica  in 
difesa  della  scuola  criminale  positiva  "  (Bologna,  1885),  pp.  85  et  seq. 


§257]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  375 

alcoholic  delirium  or  by  a  more  or  less  social  and  excusable  pas- 
sion. Nevertheless,  these  intellectual  conditions  have  nothing  to 
do  with  intellectual  responsibility;  for,  be  they  what  they  may, 
normal  or  abnormal,  the  individual  is  always  responsible  towards 
soicety  for  the  crimes  he  has  committed.^ 

If,  on  the  contrary,  these  intellectual  conditions  are  made  not 
merely  a  criterion  of  adaptation  of  the  defensive  social  reaction 
or  a  measure  of  responsibility  (as  the  classical  doctrine  asserts  and 
therefore  reaches  solutions  in  the  case  of  extreme  youth,  intoxica- 
tion, etc.,  quite  different  and  often  contrary  to  ours),  but  also 
the  essential  condition  of  penal  accountability  as  derived  from 
moral  responsibility,  there  is  a  return  to  the  pure  classical  theory 
and  hence  to  the  psychological  absurdity  and  social  peril  insepa- 
rable from  it.  In  addition  to  this  fimdamental  mistake,  there  are 
others  contained  in  this  eclectic  theory  of  responsibility.  What 
in  effect  is  to  be  understood  by  this  "liberty  of  intelligence," 
in  which  is  seen  the  condition  of  moral  and  penal  responsibility? 
Are  we  to  understand  the  word  "liberty"  as  a  certain  ItaUan 
eclectic  understands  it,  copying  the  German  theory,  in  the  sense 
of  independence  of  the  internal  and  external  causes  that  determine 
man  to  action?  In  that  event  we  only  transfer  the  idea  of  the 
freedom  of  the  will  to  the  intelligence,  and  the  absurdity  is  no 
less  striking.  Indeed,  even  the  most  orthodox  defenders  of  free 
will  have  always  recognized  that  the  intelhgence  cannot  be  "free" 
in  the  anti-determinist  sense,  since  the  laws  of  logic  are  neces- 
sary and  inevitable.  Given  the  two  premises  of  a  syllogism,  the 
intelligence  cannot  be  free  to  reach  a  conclusion  different  from 
that  deduced  by  logical  necessity.  Is  one,  then,  to  understand 
liberty  as  the  normality  and  integrity  of  the  intelligence?  If 
so,  the  conception  is  in  itself  accurate  and  positive,  but  in 
the  eclectic  theory  I  am  discussing  it  concedes  another  error. 
Article  51  of  the  German  Penal  Code  provides:  "An  act  is  not 
punishable  when  the  author  at  the  time  of  its  commission  was 
out  of  his  senses,  or  in  a  state  of  diseased  impairment  of  the 
mental  faculties  that  excluded  the  free  exercise  of  his  will." 
That  is  to  say,  that  free  choice  left  outside  the  door  of  the  will 
comes  back  through  the  door  of  the  intelligence,  since  the  liberty 

^  This  equivocation  is  perhaps  the  reason  that  Puglia,  one  of  the  earliest 
champions  of  the  positive  school,  "Studi  critici  di  diritto  criminale"  (Naples, 
1885),  p.  83,  indicated  the  principle  of  imputability  and  responsibility  in  "intelli- 
gent determination"  and  "physic  liberty"  (differing  from  free  will). 


376  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  257 

or  normality  or  integrity  of  the  will  is  required  to  the  extent 
that  it  indicates  or  imphes  "the  free  exercise  of  the  will." 
Bemer,  one  of  the  most  accredited  representatives  of  this  eclectic 
theory  of  imputabiUty,  expressly  says  that  "in  order  that  there 
may  be  imputability,  i.  e.  penal  responsibility,  these  things  are 
requisite:  consciousness  or  self -consciousness  of  the  external 
world  —  developed  consciousness  of  duty.  In  these  conditions 
of  the  intelligence  is  already  comprised  inner  Uberty,  and  hence 
it  is  needless  to  enumerate  it  as  another  or  the  conditions  neces- 
sary for  imputability.^  Among  the  more  recent  writers,  Liszt 
(who,  as  I  shall  presently  show,  has  since  changed  his  opinion) 
in  a  less  explicit  way  made  this  declaration:  What  is  presup- 
posed by  penal  responsibihty  and  what  is  consequently  the  condi- 
tion of  imputability,  is  not  a  freedom  of  will  withdrawn  from  the 
law  of  causation  but  merely  the  determinabihty  of  will  con- 
formably to  law  in  general  by  means  of  ideas  and  in  particular 
by  means  of  the  notions  of  religion,  ethics,  law,  and  prudence 
which  regulate  conduct.  Only  in  this  determinability  of  the  will 
does  penal  law  find  a  solid  base  sheltered  from  the  attacks  of 
the  philosophers."  ^  This  still  means  that  the  intelligence  is 
taken  as  the  directing  element  of  the  will  and  as  such  is  taken 
alone  as  the  criterion  and  condition  of  moral  and  p>enal  responsi- 
bihty. Indeed,  going  back  to  the  ancient  German  criminologists, 
Kleinschrod,  after  saying  that  "an  act  to  be  punishable  must  have 
been  committed  with  the  use  of  reason,"  immediately  adds,  "be- 
cause without  the  use  of  reason,  we  cannot  imagine  any  choice." 
It  is  true  that  he  also  adds,  "that  he  does  not  understand  by  the 
use  of  reason,  the  energy  of  the  will  and  the  liberty  of  the  mind 
in  the  complete  sense  of  the  expression  (voUtional  liberty  with- 
drawn from  the  law  of  causation,  is  Liszt's  way  of  repeating 
him),  but  a  certain  degree  of  reason  which  is  requisite  in  order 
that  there  should  be  a  choice."  This  is  the  crumb  of  liberty  that 
they  cannot  do  without.  But  it  is  also  true  that  the  same  author 
elsewhere,  explaining  himself  better  in  connection  with  unpre- 
meditated crimes  —  a  thorny  subject  for  the  adherents  of  moral 
responsibility  —  said  that  conditions  of  punishabiUty  are  two  in 

*  Bemer,  "Treatise  on  Criminal  Law."  This  is  in  exact  contradiction  to 
Zuppetta,  "Corro  di  diritto  penale  comparata"  (Naples,  1871),  II,  233,  that  the 
essential  element  in  crime  is  "freedom  in  him  who  commits  it,"  this  freedom  in- 
cluding that  of  intelligence. 

*  Liszt.  "Lehrbuch  des  deutschen  Strafrechts,"  4th  ed.  (Berlin,  1881),  p.  60. 


§257]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  377 

number:  (a)  The  act  must  have  been  founded  on  the  will  of 
the  agent  and  it  must  have  been  psychologically  possible  for 
him  not  to  have  committed  it;  (6)  The  agent  must  have  been 
conscious  of  the  penal  law.^  Aside  from  these  two  mistakes 
(confusion  between  liberty  and  normahty  of  intelhgence,  and 
intelligence  considered  as  the  condition  of  free  volitive  determina- 
tion) it  is  possible  to  offer  other  difficulties  for  this  eclectic  theory. 
First  of  all,  as  Poletti  ^  said,  the  idea  of  crime  or  of  a  given  crime 
is  the  same  in  the  consciousness  and  intelligence  of  an  honest 
man  who  abstains  from  its  commission  and  of  a  criminal  who 
eommits  it.  The  difference  is  that  this  idea  is  repugnant  to  the 
moral  sense  of  the  honest  man  and  hence  in  him  has  no  suffi- 
cient impulsive  force  for  translation  into  action,  or  encounters 
other  inhibitive  energies  which  prevent  its  execution.  In  the 
criminal,  the  idea  of  the  crime  arouses  no  such  repugnance,  does 
not  encounter  the  same  resistance  in  his  brain  and  reaches  its 
external  muscular  realization.  It  is  not,  therefore,  a  difference 
of  intelligence  that  determines  the  non-execution  of  the  crime  in 
the  one  case  and  its  execution  in  the  other  with  consequent  penal 
responsibility.^  Furthermore,  even  in  many  of  the  insane 
(doubtless  not  among  the  violent  and  delirious  insane,  who  are 
the  only  ones  to  haunt  the  imagination  of  classical  criminologists, 
but  in  the  larger  class  of  insane  whose  consciousness  is  not  sup- 
pressed) the  idea  of  crime,  for  example  homicide  and  robbery,  is 
the  same  as  in  the  criminal  who  is  not  insane:  they  may  have 
consciousness  that  they  are  committing  a  prohibited  act  and  yet 
according  to  this  eclectic  theory  they  would  not  be  responsible.^ 

1  Kleinschrod,  "Doctrine  of  the  Imputation  of  Crimes,"  in  "Scritti  germanici 
<ii  diritto  criminale  (Naples,  1846),  I,  16,  and  "The  Essence  and  Punishment  of 
the  Guilty  Criminal,"  ibid.  I,  85.  See  in  special  relation  to  fraud  and  deceit, 
Franck,  "Verstellung  und  Wille  in  der  modemen  Doluslehre,"  in  Z.  G.  S.  (1890), 
X,  2. 

2  Poletti,  "La  persona  giuridica  nella  scienza  del  diritto  penale"  (Udine,  1886). 
'  For   this  fundamental  psychological   characteristic    of   the    delinquent,   see 

Ferri,  "Omicidio,"  pp.  528  et  seq. 

*  Cordi,  "Delia  imputabilita,"  in  Cogliolo,  "Trattato  di  diritto  penale"  (Milan, 
1890),  fasc.  65,  p.  19.  "We  believe  that  every  man  living  in  society,  who  medi- 
tates and  does  an  act  against  the  law,  while  in  normal  psychic  and  intellectual 
condition,  is  responsible  therefor."  And  Vida,  "De  la  imputabilidad,"  in  the 
"Revista  de  antropologia  criminal"  (February,  1889),  p.  82,  "For  penal  law  to 
consider  an  act  imputable,  it  is  enough  for  it  to  have  been  executed  with  con- 
sciousness and  reflection  by  a  man,  who  knew  what  he  was  doing."  And  Laurent, 
"Des  habitues  des  prisons  de  Paris,"  p.  600,  "To  be  responsible,  the  delinquent 
need  not  understand  what  evil  is,  it  is  enough  if  he  can  distinguish  between  what 
is  allowed  and  what  is  forbidden  by  the  laws  of  his  country." 


378  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  258 

How,  indeed,  is  one  to  establish  in  practice  whether  the  intelli- 
gence is  normal  or  not?  Are  these  traditional  and  in  some  sort 
regulating  circumstances  of  tender  infancy,  insanity,  sleep,  drunk- 
enness, or  of  the  congenital  deaf  mute  the  only  ones  that  deprive 
a  man  of  his  normal  inteUigence?  And  in  estimating  responsi- 
bility, how  is  the  want  of  training  and  education  to  be  calculated, 
or  that  rusticity  that  was  sufficient  in  the  practical  sense  of  the 
Romans  to  exempt  an  accused  from  the  absurd  assumption  that 
every  one  knows  the  law?  The  vague  extenuating  circumstances 
customarily  received  are  in  this  case,  also,  only  an  anti-scientific 
expedient  to  soften  the  glaring  contrast  between  moral  resix)nsi- 
bility  and  the  state  of  intelligence  in  many  criminals,  who,  while 
not  pathological,  are  not  normal  by  any  means. 

Finally,  this  theory  carries  us  back  to  the  old  Cartesian  and 
Rosminian  psychology  of  separate  faculties  of  the  mind  and 
hence,  of  an  inteUigence  distinct  from  the  will.  There  remains 
always  the  insurmountable  objection  to  all  of  the  eclectic  theories 
that  responsibihty  and  hence  defense  of  society  vanish  or  diminish 
just  where  it  is  most  necessary,  namely  in  the  case  of  criminals 
whose  intelligence  is  abnormal  and  who  are  on  that  account  the 
most  dangerous. 

§268.    Eclectic  Theories  of  Responsibility:  Voluntarianism. 

Now  that  the  various  eclectic  theories,  which  nevertheless 
always  rest  on  one  or  the  other  of  the  two  traditional  elements 
of  responsibility  —  liberty  and  inteUigence  —  have  been  rejected, 
emasculated,  modified,  or  reduced  to  a  minimum,  more  theories 
are  oflFered  us  that  are  also  eclectic  and,  I  may  say  sporadic,  since 
they  spring  up  here  and  there.  They  are  brought  forth  by  the 
imagination  of  some  thinker,  who  does  not  see  that,  with  the 
suppression  of  the  old  idea  of  moral  responsibility,  there  is  no 
other  sure  and  positive  road  except  to  adhere  to  the  idea  of  social 
accountability,  but  who  goes  about  searching  in  the  scraps  for 
more  or  less  ingenious  criteria,  all  of  which  are  incapable  of  meet- 
ing the  theoretical  and  practical  needs  of  a  doctrine  of  social 
defense  against  crime. 

Principally,  in  the  drafting  of  penal  codes  there  has  spon- 
taneously appeared  another  expedient  to  avoid  the  ever-increas- 
ing difficulties  on  the  subject  of  free  wiU  as  the  foundation 
of  moral  and  penal  responsibility.  It  has  been  said:  Admit- 
ting that  free  choice  and  Uberty  may  be  disputed,  the  wiU  still 


§258]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  379 

subsists  with  or  without  liberty,  and  on  its  account  man  is 
materially  and  morally  accountable  for  his  crimes  because  they 
are  precisely  the  external  manifestation  and  effect  of  this  will 
which  represents  all  that  is  most  intimate  and  most  personal  in 
the  individual  agent.  The  convenience  of  this  is  that  in  merely 
pronouncing  the  word  "will"  no  offense  is  given  to  either  side. 
The  denial  of  free  choice  as  an  inherent  quality  of  will  is  not  a 
denial  of  will  itself  in  so  far  as  it  is  determined  by  external  and 
internal  causes:  and,  on  the  other  hand,  the  believer  in  free 
choice  will  be  satisfied  with  the  mere  word  "will"  because  he 
considers  liberty  as  an  inseparable  quality  of  the  will  like  weight 
in  matter.  As  early  as  the  first  draft  of  the  Penal  Code  for 
the  Kingdom  of  Italy  in  1806-1808  moral  responsibility  was 
based  explicitly  on  the  intervention  only  of  the  will.  The  same 
is  true  of  the  Italian  Code  in  force  since  1889,  of  the  Spanish 
Code  of  1890  and  of  the  Austrian  Code  of  1852,  which,  however, 
(like  that  of  Zurich)  speaks  in  Article  I  of  malicious  intent  (direct 
or  indirect)  rather  than  of  voluntariness.  The  Code  of  Zurich 
and  the  Hungarian  Code,  wrongly  quoted  as  legislative  precedents 
by  the  Italian  legislator,  do  not  in  fact  mention  either  will  or  vol- 
untariness, but  only  "dolus"  and  "culpa,"  and  I  shall  presently 
show  how  different  that  is.  The  draft  of  the  Russian  Penal  Code 
(1883),  the  Swiss  Draft  (edited  by  Stooss  and  modified  by  a  spe- 
cial commission),  and  the  Bulgarian  Code  (1896)  give  the  will  as 
the  condition  of  punishability.  There  are  not,  to  my  knowledge 
any  other  codes  containing  this  preliminary  disposition  on  imputa- 
bility  or  punishability;  far  from  it,  they  all  begin  by  determining 
the  general  condition  of  non-imputability  or  non-punishability  by 
some  one  of  these  famous  formulae,  such  as  "weakness  of  mind" — 
"privation  of  intelligence" — "diseased  impairment  of  the  mental 
faculties" — "unconsciousness" — "lack  of  consciousness"  (in  the 
criminal)  of  his  own  act  and  the  crime  he  commits  —  "duress" 
either  in  the  acts  or  the  determination  —  "irresistible  force," 
exterior  or  interior,  etc.,  which  have  fatigued  many  generations 
of  code  draughtsmen,  condemning  them  to  a  sterile  and  pitiable 
labor  of  formulae  and  quibbles.  These  formulae  themselves 
prove  their  kaleidoscopic  variety,  the  logical  instability,  and 
scientific  inconsistency  of  the  classical  theory  of  moral  respon- 
sibility, a  responsibility  ever  founded  on  and  measured  by  liberty 
and  intelligence  and  ever  given  the  lie  by  the  data  of  psychology 
and  criminal  psychopathology. 


380  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  258 

Let  us  examine  the  value  of  this  voluntariness  that  is 
so  convenient  for  the  eclectics  and  wherein  the  legislators 
of  so  many  nations  have  sought  to  avoid  the  reef  of  the 
former  free  choice.  With  voluntariness,  there  is  always  the 
assumption  that  moral  responsibihty  is  the  condition  and  measure 
of  penal  accountability;  hence,  neither  the  absurdities  nor  the 
dangers,  pointed  out  in  the  other  eclectic  theories,  are  avoided: 
on  the  contrary  new  ones  are  added.  The  criterion  of  voluntari- 
ness as  the  base  of  moral  responsibihty  is  an  error  from  the  psycho- 
logical and  juridical  point  of  view,  and  in  practice  it  is  equivocal 
and  uncertain.  The  psychological  element  of  the  crime  (which 
naturally  also  has  its  value  in  the  theory  of  social  responsibility,^ 
in  determining  the  conditions  of  the  act  and  of  the  agent  to 
whom  are  to  be  applied  the  corresponding  reaction  of  society) 
is  not  constituted  by  voluntariness  alone:  it  embraces  also  the 
intention  and  the  purpose. 

Voluntariness  relates  to  the  act  by  itself.  The  firing  of  a 
gun  may  have  been  intentional  or  accidental:  a  certain  word 
in  a  newspaper  article  may  have  been  intentional  or  it  may 
have  been  a  typographical  error.  Intention  relates  to  the 
motive  for  which  the  act  has  been  willed.  Was  the  gun  fired 
to  kill,  to  wound,  to  frighten,  or  only  to  make  a  noise.''  Was 
the  defamatory  word  written  to  vilify  some  one  or  to  reveal  the 
truth  ?  Purpose  relates  to  the  effect  which  is  sought  to  be 
obtained  in  willing  to  accompHsh  a  given  act  with  a  given  inten- 
tion. A  gun  has  been  fired  to  kill ;  but  was  the  purpose  to 
avenge  an  insult,  to  obtain  property,  to  rob,  or  in  self-defense? 
The  defamatory  word  has  been  used  to  reveal  the  truth:  but  was 
there  a  selfish  purpose,  for  example,  to  eliminate  a  competitor 
to  wound  some  one,  or  to  get  notoriety?  —  or  was  it  proposed 
to  serve  society  by  public  censure  of  rascals  who  fraudulently 
assume  the  reputation  of  honest  men?  That  there  may  be  penal 
accountability  three  elements  are  requisite.  It  is  not  sufficient 
that  the  act  has  been  willed,  there  must  also  have  been  the 
intention  to  injure  the  right  of  another,  together  with  an  anti- 
social and  anti-juridical  purpose.^     This  is  expressed  less  com- 

»  Chap.  VI,  Vm,  post. 

'  It  is  only  through  this  analysis  of  the  psychological  element  in  crimes  that 
a  scientific  doctrine  of  malice  can  be  constracted.  Thus,  when  Garcon,  "Projet 
du  code  penal  nisse,"  in  the  "Revue  penitentiaire"  (1896),  p.  710,  said  that  "the 
theory  of  intent  in  criminal  law  is  still  to  be  made"  he  was  right,  if  he  thought 
of  the  classical  school,  but  less  accurate  in  regard  to  the  positivists. 


§258]     ECLECTIC  THEORIES  OF  RESPONSIBILITY         381 

pletely  and  less  clearly  by  some  jurists  and  legislators  when  they 
say  that  the  psychological  element  of  crime  is  constituted  by 
"dolus,"  or  by  perversity  of  intention,  or  by  mahce,  or  again, 
when  they  establish  the  rule  that  there  must  be  beyond  the  gen- 
eral "dolus,"  a  specific  "dolus."  It  is  hence  a  psychological 
error  to  say  that  an  act  is  punishable  because  it  is  voluntary. 
Frequently  the  code  (for  example  in  defamation,  concealing 
criminals,  abandonment  of  children,  and  assisting  suicide)  pun- 
ishes the  mere  act  provided  it  be  voluntary  without  considering 
the  intention  of  the  agent  or  the  purpose  he  had  in  view.  This 
is  unjust  and  improvident  because  if  it  is  important  to  punish  one 
who  is  guilty  of  a  malevolent  defamation  with  a  view  to  an  anti- 
social purpose,  or  the  concealer  who  seeks  a  dishonest  gain  or 
wishes  to  insult  authority,  or  the  person  who  abandons  an  infant 
to  cause  it  to  perish  or  disappear,  or  who  incites  or  aids  another 
in  self-destruction  to  obtain  property  or  exercise  vengeance  and 
in  similar  cases;  —  on  the  contrary  one  should  not  punish  the 
defamer  who  tells  the  truth  in  order  to  serve  the  public  nor  the 
harborer  who  obeys  a  sentiment  of  pity  or  even  the  desire  to 
assist  the  discovery  and  proof  of  a  crime,  nor  the  one  who  aban- 
dons a  child  under  stress  of  poverty  and  in  such  a  way  that  either 
individuals  or  the  public  take  charge  of  the  waif,  nor  the  one  who 
aids  in  the  suicide  of  another  under  the  mere  impulse  of  humanity. 
They  all  do  a  voluntary  act,  but  with  intentions  and  purposes 
so  different  that  in  the  one  case  the  act  is  anti-social  and  anti- 
juridical  but  in  the  other  it  is  not.  It  must  therefore  deter- 
mine a  defensive  reaction  of  society  in  one  case  and  not  in  the 
other.  This  alleged  voluntariness  is  also  a  juridical  error.  By 
what  right  would  you  punish  those  crimes  of  omission  in  which 
it  cannot  be  maintained  that  the  negligence  and  forgetfulness 
have  anything  voluntary  in  them?  Moreover,  it  can  be  main- 
tained, even  in  cases  of  positive  action,  that  negligence  is  a  defect 
of  the  will  rather  than  of  the  intelligence.  It  is  well  known  that 
the  classical  school  which  bases  moral  and  penal  responsibility 
on  the  intelligence  and  free  will  of  the  individual  has  always  gone 
upon  the  rocks  in  the  justification  of  the  punishability  of  unpre- 
meditated and  involuntary  crimes.  The  presumption  of  "dolus" 
(Carmignani),  punishability  by  exception  (Mori),  by  correction, 
etc.,  have  been  thought  of;  but  the  true  reason  is  that  given  by 
Carrara  —  "social  necessity";  and  this  is  a  positivistic  reason  in 
harmony  with  our  conception  of  social  accountability  but  not  in 


382  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  259 

harmony  with  the  classical  theory  of  moral  freedom.  Indeed,  it 
is  natural  that  we  should  maintain  that  non-premeditated  acts 
are  punishable  (except  as  to  the  form  to  be  given  the  social  sanc- 
tion), exactly  Uke  any  other  crime  and  for  the  sole  reason  that 
they  are  anti-social,  irrespective  of  the  moral  responsibihty  (by 
free  will  or  by  normal  intelligence)  of  the  agent.  Consequently, 
on  account  of  all  the  absurdities  and  dangers  that  it  has  in  com- 
mon with  all  the  other  eclectic  theories  and  formulas,  and  on  ac- 
count, also,  of  the  fundamental  psychological  and  juridical  errors 
peculiar  to  it,  this  eclectic  theory  of  volimtariness  again  proves 
that  a  decision  must  be  made  between  free  choice  and  determin- 
ism and  moral  responsibihty  and  social  accountabihty.  Other- 
wise the  thought  of  the  legislator,  remaining  imdecided  and  vague 
in  the  shadows  of  a  barren  eclecticism,  may  perhaps,  give  us  a 
comforting  indication  of  the  inevitable  transitions  preparatory  to 
the  triumph  of  the  positivist  theories  but  deprive  practical  penal 
justice  of  all  clearness  and  precision  and  leave  it  none  of  those 
sure  criteria  which  alone  permit  the  law  with  beneficent  provi- 
dence to  descend  from  the  domain  of  theoretical  abstractions  to 
the  living,  palpitating  reaUty  of  human  acts. 

§  259.    Eclectic  Theories  of  Responsibility:  Intimidability. 

Another  eclectic  theory,  designed  to  concihate  the  new  data 
of  scientific  physio-psychology  with  the  ancient  moral  responsi- 
bihty of  the  criminal,  has  been  advanced  by  Dubuisson,  copied 
by  Impallomeni  and  later  by  several  other  eclectic  criminalists. 
Dubuisson,  who  is  a  physician,  not  a  jurist,  said:  "Man  is  re- 
sponsible for  his  acts,  even  when  he  has  received  by  heredity 
intellectual  and  moral  dispositions  which  necessarily  impel  him 
in  a  given  direction  .  .  .  because  man,  whether  born  perverse,  or 
perverted  by  a  vicious  education,  is  not  by  that  fact  alone  drawn 
to  evil  without  possibihty  of  resistance,  and  hence  is  not  irrespon- 
sible. ...  Ill  endowed  as  he  may  be,  he  is  only  a  more  or  less 
unfortunate  variety  of  the  species,  but  nevertheless  his  intellec- 
tual and  moral  functions  operate  in  a  normal  way.  .  .  !  It  is 
true  that  certain  individuals,  idiots,  for  example,  are  bom  with 
so  miserable  an  endowment  from  the  intellectual  point  of  view 
that  they  cannot  rise  even  to  the  notion  of  good  and  evil.  But 
all  perverts  are  not  idiots  and  it  is  error  to  think  that  simply 
because  a  man  is  badly  constituted  from  the  moral  point  of  \new 
i.  e.  from  the  point  of  view  of  his  tendencies,  that  it  should  be 


§  259]    ECLECTIC  THEORIES  OF  RESPONSIBILITY  383 

impossible  for  him  to  have  a  sufficiently  precise  conception  of 
what  is  moral  or  immoral,  lawful  or  unlawful.  It  is  one  thing 
to  distinguish  good  from  evil,  a  purely  intellectual  operation,  and 
quite  another  thing  to  feel  impelled  to  good  or  evil,  a  purely 
moral  phenomenon.  The  sane  individual  may  comprehend  the 
good  and  yet  do  the  evil.  ...  It  is  a  question  now  of  showing 
that  it  is  not  impossible  for  this  man  who  was  born  unfortunate, 
and  whom  environment  and  education  may  have  perverted  still 
more,  to  resist  his  tendencies  and  that  he  may  consequently  be 
considered  responsible.  .  .  .  We  are  confronted  by  an  individual 
morally  incapable  of  self-control,  of  an  individual  rebellious  to 
all  the  suggestions  of  a  higher  order.  What  is  there  left  in  him 
to  counterbalance  the  evil  tendencies  that  rule  his  brain?  Nothing 
outside  of  these  very  tendencies  and  that  would  in  truth  be  very 
little  if  there  were  no  penal  repression.  It  is  penal  repression 
which  comes  to  the  aid  of  this  unfortunate.  Cupidity,  sexual 
passion,  the  instinct  of  destruction  seek  satisfaction;  but  intelli- 
gence shows  this  man  that  such  satisfactions  will  bring  about 
castigation  through  his  property,  his  liberty,  his  life,  i.  e.  in  the 
very  instincts  that  he  is  burning  to  satisfy;  and  it  then  happens 
(provided  of  course  that  the  intimidation  be  sufficient)  that  these 
evil  tendencies  operating  in  a  contrary  direction  hold  themselves 
in  balance  and  are  neutralized.  Man,  according  to  the  fatalists, 
should  not  be  punished  because  he  is  unable  to  resist  his  tendencies. 
According  to  us  man  is  capable  of  resisting  his  tendencies  ex- 
actly because  he  may  be  punished,  because  punishment  exists. 
Without  punishment,  which  is  intimidation,  the  perverted  being 
would  be  without  refuge  against  his  perversity  and  could  not  do 
otherwise  than  yield  to  it.  .  .  .  This  is  why  I  have  laid  down  the 
general  rule,  without  concerning  myself  with  exceptions  (all  em- 
braced in  mental  alienation)  that,  as  all  men  are  capable  of  in- 
timidation, they  must  be  considered  as  responsible  for  their 
acts."  ^  There  is  no  need  to  pause  for  any  length  of  time  to 
show  the  inanity  of  this  new  eclectic  tentative.  Punishment,  as 
Beccaria^  said,  is  a  "sensible  motive  opposed  to  crime,"  and 
hence,  "psychological  coercion"  is,  as  Feuerbach  said,  one  of  the 
reasons  and  one  of  the  offices  of  punishment,  and  clearly  can  be 
reconciled  with  psychological  determinism  but  not  with  the 
hypothesis  of  the  free  choice.     The  power  to  direct  man  by  means 

'  Duhuisson,  "Theorie  de  la  responsabilite." 
*  Beccaria,  "  Dei  delitti  e  delle  pene,"  §  i. 


384  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  259 

of  penal  laws,  of  which  Carmignani  speaks  also,  becomes  nonsense 
when  it  is  reduced  to  a  gambUng  chance  by  admitting  free  choice. 
As  Clemence  Royer  said  at  the  second  Congress  of  Criminal 
Anthropology,  "Whatever  form  it  may  have  taken  under  the 
influence  of  false  beliefs  and  the  vagaries  of  human  imagination, 
juridical  punishment  can  have  no  other  object  than  to  change 
the  resultant  of  the  motives  of  action;  so  that  in  most,  if  not  all 
cases,  fear  of  punishment  in  the  individual  tempted  to  commit 
a  harmful  act  modifies  the  direction  of  this  resultant,  giving  it 
a  negative  in  place  of  a  positive  sign."  ^  Saying  (as  is  repeat- 
edly said  in  this  book)  that  one  of  the  offices  and  functions  of  the 
penalty  established  by  the  legislator,  appUed  by  the  judge,  and 
executed  by  the  administrative  power,  is  (within  the  limits  of 
the  very  slight  real  efficacy  of  jjenalties)  psychological  coercion 
or,  as  Romagnosi  put  it,  the  counter-impulsion  to  the  criminal 
impulse  —  is  quite  a  different  thing  from  saying  with  Dubuisson 
that  the  intimidability  of  man  is  the  foundation  of  his  moral  and 
penal  responsibiUty.  First  of  all,  when  a  man  commits  a  crime 
he  commits  it  precisely  because  he  has  not  been  intimidated  and 
because,  in  the  exact  conditions  in  which  he  was  placed  in  acting, 
he  could  not  be  intimidated  by  punishment. 

The  logical  conclusion  of  this  theory  would  be  that  there  are 
no  persons  responsible  except  those  who  do  not  commit  crimes. 
Even  disregarding  all  that  is  psychologically  false  and  illogical  in 
the  assumption  that  man  in  all  his  acts  is  subject  to  the  deter- 
minism of  heredity  and  environment,  and  in  the  belief  that  in  spite 
of  it  he  is  capable  of  resisting  this  very  determination  of  heredity 
and  environment  when  about  to  commit  crime;  even  disregarding 
all  that  I  have  said  heretofore  on  the  psychology  of  punishment; 
even  failing  to  notice  that  ordinarily  this  theory  in  contemplating 
an  abstract  type  of  criminal  forgets  or  ignores  that  in  all  criminals 
(sometimes  more,  sometimes  less),  in  every  category,  there  is  found 
an  exceptional  want  of  foresight;  it  is  still  singularly  naive  to  de- 
clare that  "the  evil  tendencies  operating  in  a  contrary  direction 
estabhsh  their  own  equilibrium,  provided  that  the  intimidation  be 
sufficient."  Do  we  not  see  criminals  for  whom  the  menace  even  of 
the  death  penalty  is  not  sufficient  to  prevent  the  commission  of 
crime?  This  is  precisely  because  intimidation  is  sufficient  —  only 
for  those  who  do  not  commit  crime,  and  these  only,  I  repeat,  would 
be  responsible.  Doubtless  the  theory  of  psychological  coercion 
1  "Actes  du  2*nie  congr^"  (Paris,  1890).  p.  S60. 


§259]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  385 

given  as  the  reason  for  the  social  right  to  punish  may  answer  this 
objection  in  the  words  of  Bauer,  "that  there  is  no  sort  of  laws 
which  realize  their  object  fully  and  adequately  ";  but  that  does  not 
mean  that  the  whole  legislation  is  an  institution  that  does  not 
correspond  to  its  object.  The  complete  suppression  of  crimes  is 
an  ideal  perfection  that  is  unattainable.  But  this  only  proves 
that  the  penal  law  also  shares  in  the  imperfection  which  is  char- 
acteristic of  all  human  institutions.  The  penal  menace  remains 
none  the  less  an  efficacious  means  in  most  cases  and  hence  corre- 
sponds to  the  object  it  seeks  to  attain.  "Just  as  a  physician  will 
not  cease  to  use  a  medicine  which  he  has  often  employed  with 
salutary  results  simply  because  it  has  not  been  efficacious  in  cer- 
tain cases,  so  also  a  legislator  will  not  cease  to  menjace  illicit 
actions  with  penalties,  although  experience  has  taught  him  that 
these  menaces  are  insufficient  to  prevent  all  transgressions."  ^ 
When  intimidation,  instead  of  being  assumed  as  an  office  of  the 
social  function  of  defense  (which  we  do  not  at  all  admit,  since  in 
the  preservative  clinic  of  crime  intimidation  is  one  of  the  effects 
of  the  means  employed  just  as  it  is  for  insane  persons  in  asylums, 
but  it  is  neither  the  object  nor  the  justifying  principle  of  the 
function  itself)  —  when  intimidation,  I  say,  is  offered  to  us  as 
the  foundation  of  individual  responsibility,  evidently  all  the 
individual  cases  where  crime  is  committed  would  be  all  cases  of 
irresponsibility,  simply  because  the  criminal  in  the  internal  and 
extern  alcircumstances  surrounding  him  at  the  time  of  the  com- 
mission was  not  intimidable.  It  is  just  the  same  as  if  one  were 
to  reason  in  an  abstract  way  on  the  instinct  of  self-preservation 
in  cases  of  suicide.  While  it  is  true  that  this  instinct  is  present 
in  those  who  do  not  commit  suicide,  it  does  not  exist  in  the  sui- 
cide at  the  moment  of  self-destruction.  Vice  versa,  a  mass  of 
individuals  who,  according  to  Dubuisson  and  his  followers,  should 
be  irresponsible  (by  reason  of  mental  alienation)  would  in  fact 
according  to  his  theory  be  really  responsible.  It  is  well  known 
that  the  greater  part  of  the  insane  may  be  governed  and  intim- 
idated by  the  same  psychological  means  of  rewards  and  pimish- 
ments  which  serve  that  purpose  with  the  sane.^ 

^  Bauer,  "Tentative  di  una  rettificazione  della  teoria  della  coazione  psicolo- 
gica,"  in  the  "Scritti  germanici  di  Mori,"  Naples,  1846,  II,  9. 

^  The  imaginary  characteristics  of  the  insane,  on  the  contrary,  which  those 
ignorant  of  psychiatry,  criminalists  or  not,  imagine  when  they  speak  of  insane 
delinquents,  are  always  those  which  the  great  criminologist  Niccolini  painted  in 
these  words:  "Insanity  in  law  is  that  which  completely  obscurea  and  destroys  the 


386  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  259 

There  are,  however,  among  the  insane,  honest  folk  and  crim- 
inals, according  as  their  malady  attacks  or  respects  their  social 
sense;  and  I  have  always  observed  in  the  asylmns  where  they  are 
treated  that,  for  example,  the  homicidal  insane  have  the  clean-cut 
characteristics  of  the  murderer's  physiognomy  (enormous  jaws, 
glassy  eyes,  thin  lips)  just  Uke  born  murderers  who  are  not  insane. 
At  all  events,  the  regular,  quiet,  and  laborious  life  of  the  asylum 
for  the  criminal  insane  ^  is  a  daily  proof  that  the  majority  of 
madmen  (save  the  rare  exceptions  of  violent  and  furious  madmen) 
can  be  intimidated  and  disciplined  by  threat  of  punishment. 
This  has  been  recently  well  pointed  out  by  the  alienist  De  Mattos 
among  others:  "When  an  individual  discontinues  the  performance 
of  an  act  to  which  he  himself  feels  inclined,  because  he  fears 
punishment,  or  when  induced  by  the  hope  of  reward  he  performs 
an  act  which  without  this  stimulus  he  would  have  tried  to  shirk, 
he  is  responsible.  In  this  sense  the  insane  are  responsible;  for 
experience  proves  every  day  that  they  are  able  to  modify  their 
conduct  in  view  of  punishment  or  reward.  More  or  less  severe 
reprimands,  confinement  in  a  cell,  deprivation  of  the  hours  of 
recreation,  increase  of  labor,  on  the  one  hand,  and,  on  the  other, 
praise,  a  show  of  affection,  an  increase  of  money,  the  grant  of 
more  liberty,  are  the  disciplinary  means  successfully  employed  in 
practice  in  controlling  some  of  the  insane.  In  some  asylums  this 
idea  has  been  carried  so  far,  and  I  think  with  advantage,  as  to 
give  the  insane  a  percentage  on  the  product  of  their  labor.  An- 
other proof  of  the  existence  of  moral  responsibility  among  some  of 
the  insane  is  in  the  well-known  fact  that  they  often  try  to  conceal 
their  delusion  (fixed  idea)  in  order  to  procure  their  Hberty.     These 

memory  of  past  sensation,  so  that  all  knowledge  of  natural  relations  between  things 
disappears;  it  is  that  which  makes  present  impressions  become  organic  reactions 
rather  than  sensations;  that,  in  a  word,  which  either  deprives  a  man  of  all  knowl- 
edge, sensation,  and  of  being  the  same  that  he  always  has  been,  or  else  it  leaves 
some  glow  of  this  consciousness,  but  imties  and  loosens  the  bonds  between  the 
ideas,  so  that  the  man  no  longer  understands  or  recognizes  his  own  entity."  See 
also  Maiorfi,  "Concetto  scientifico  e  volgare  della  pazzia"  (Florence,  1883). 

This  is  why  the  English  nobleman,  of  whom  Maudsley  speaks,  when  leav- 
ing an  insane  asylum,  asked  where  the  insane  were.  The  general  belief  (and 
many  criminologists  entertain  it)  represents  the  insane  as  beings  entirely  without 
the  scope  of  humanity  (such  as  the  bom-criminal  is  still  considered),  and  this  is 
the  reason  that  before  the  courts  as  well  as  in  the  insane  asylums  and  prisons,  the 
moment  that  the  insane  in  the  criminals  are  seen  to  resemble  normal  humanity 
and  their  abnormalities  are  not  as  visible  as  two  heads  or  three  eyes,  the  ignorant 
or  less  cultured  create  the  obscurities  and  errors  in  the  theories  of  the  positiviat 
achool  which  exist  only  in  their  own  brains. 

^  Saccozai,  "L'idea  della  pena  nei  pazzi  criminali." 


§259]     ECLECTIC  THEORIES  OF  RESPONSIBILITY        387 

insane  persons  conceal  with  great  care  and  rare  cunning  every 
manifestation  of  insanity,  since  they  understand  that  it  is  be- 
cause they  reveal  senseless  ideas  and  do  senseless  acts  that  they 
are  restrained  in  an  odious  prison.  It  takes  a  practised  eye  to 
recognize  those  who  simulate  madness,  and  it  takes  a  no  less 
practised  eye  to  distinguish  those  who  simulate  sanity."  ^ 

The  logical  conclusion  of  this  eclectic  theory  would  therefore 
be  as  follows:  Since  the  greater  part  of  the  insane  are  intimidable, 
the  insane  are  on  that  account  morally  responsible.  This  is  just 
the  contrary  of  what  Dubuisson  and  the  others  seek  to  establish 
in  making  it  a  point  to  distinguish  the  responsible  delinquent  from 
those  who  are  irresponsible  by  reason  of  mental  alienation.'^ 
By  way  of  conclusion,  let  us  say  that  a  last  objection  can  be  made 
to  this  miserable  attempt  to  harmonize  bio-physiological  de- 
terminism with  moral  responsibility,  namely,  that  it  would  be 
impossible  to  justify  by  intimidability  involuntary  or  non-pre- 
meditated crimes.  Where  there  is  ignorance  of  the  law  as  when 
an  individual  commits  a  crime  or  contravention  without  knowing 
that  the  act  is  forbidden  by  law,  one  can  even  understand  how 
this  excuse  is  admissible  (although  unjustly  if  made  a  general 
rule)  by  those  who  say  that  man  is  responsible  because  he  acts 
with  freedom,  intelligence,  or  voluntarily.     But  for  those  who 

^  De  Mattos,  "La  pazzia."  See  also  Beard,  Elwel,  Seguin,  Jewell,  Jolsoom, 
"The  Moral  Responsibility  of  the  Insane,"  in  the  "North  American  Review" 
(January,  1882);  Mercier,  "Sanity  and  Insanity"  (London,  1890),  Chap.  IV; 
Jelgersma,  "L'origine  pathologique  du  caractere  du  criminel  ne." 

^  This  idea  of  intimidability  as  the  reason  of  imputabiUty  was,  as  I  have 
said,  implicitly  contained  in  the  theories  of  Carmignani  (dirigibility  of  human 
action),  and  of  Feuerbach  (psychological  coercion),  and  above  all,  of  Romagnosi, 
"Genesi  del  diritto  penale,"  §§340,  461. 

It  is  also  implicitly  indicated  in  the  special  sense  which  Dubuisson  gives  to 
this  theory  of  Poletti,  "Del  sentimento  nella  scienza  del  diritto  penale."  Before 
Dubuisson  and  his  followers  this  idea  was  clearly  indicated  by  Bain,  "Mind  and 
Body,"  and  by  Piperno,  "La  nuova  scuola  criminale  in  Italia"  (Rome,  1886),  p. 
93,  and  hy  LSvy-Bruhl,  "Idee  de  responsabilite,"  pp.  4350,  198,  who  says,  "All  that 
the  law  requires  to  make  a  man  responsible  is  that  he  can  understand  the  punish- 
ment with  which  the  law  threatens  certain  acts,  and  abstain  from  these  acts  because 
of  the  punishment.  Every  one,  therefore,  like  the  insane,  is  irresponsible  if  he  is 
incapable  of  this  reflection  or  is  subject  to  morbid  impulses  which  he  cannot  re- 
press. This  is  a  clear,  precise  distinction."  Now,  the  truth  is  entirely  different, 
except  in  the  cases  where  it  deals  with  the  violent  insane,  the  idiots,  or  diseases  of 
the  will.  But  except  in  these  cases,  which  are  very  unusual  even  among  the  idiots, 
all  the  other  insane  are,  on  the  contrary,  capable  of  reflecting  upon  the  conse- 
quences of  their  acts,  and  consequently  it  is  only  through  ignorance  that  such  an 
objection  as  "can  fear  of  punishment  control  the  insane"  can  be  made.  Proal, 
"  Determinisme  et  penalite,"  A.  C.  A.  C.  (July,  1891),  p.  377,  and  "Le  crime  et 
la  peine,"  p.  387. 


38»  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  259 

assert  that  man  is  responsible  because  intimidable,  how  is  the 
responsibility  to  be  maintained  in  a  case  where  it  is  absurd  to 
speak  of  intimidability  since  the  delinquent  is  not  aware  of  the 
legal  prohibition  nor  consequently  of  the  p)enalty?  Moreover, 
in  involuntary  and  unpremeditated  crimes,  if  man  has  neither 
moral  nor  the  consequent  penal  responsibility  except  for  the 
fact  that  he  can  and  should  take  into  account  with  the  motives 
of  his  action  the  threat  of  punishment  "in  so  far  as  it  operates 
as  a  motive  present  in  the  consciousness  of  the  wrongdoer,"  how 
can  one  be  held  punishable  who  has  acted  from  mere  improvidence, 
or  who,  by  omission  and  negUgence,  has  not  acted  at  all  and  hence 
has  neither  willed  the  harmful  effect  nor  thought  of  the  penalty? 
When  one  reasons  abstractly  on  an  algebraic  type  of  criminal 
non-existent  in  real  life,  or  deduces  from  a  small  number  of  dia- 
grammatic and  particularly  striking  cases,  rules,  which  conse- 
quently do  not  apply  to  the  more  common  but  not  less  real  cases, 
it  is  easy  to  say  that  man  weighs  deliberately  a  murder  to  be 
committed  and  that  he  can  and  should  have  present  in  his  con- 
sciousness the  penalty  which  menaces  such  a  crime.  No  eclec- 
ticism, elastic  as  it  may  be,  will  ever  succeed  in  satisfactorily 
proving  that  we  should  hold  responsible,  because  intimidable, 
a  man  who  has  committed  or  caused  a  homicide  without  willing 
it  and  without  even  thinking  of  the  homicide  itself  or  a  portion 
of  the  penalty  with  which  he  is  threatened.  The  superannuated 
idea  of  intimidability  as  the  reason  for  responsibility  and  of  in- 
timidation as  the  purpose  of  punishment,  an  idea  that  the  eclec- 
tics to-day  try  to  reassert,  always  has  experience  and  history 
against  it,  for  they  have  shown  that  "psychological  coercion" 
inevitably  leads  to  a  continual  increase  of  penal  rigor,  deflecting 
the  thought  of  the  legislator  from  social  reforms,  directing  it,  as 
is  only  too  easy,  to  the  aggravation  of  p>enalties  and  punishments, 
while  criminality  does  not  cease  to  be  an  obstinate  daily  phe- 
nomenon. This  theory,  which  had  all  the  sympathy  of  so  deli- 
cate a  soul  as  Muyart  de  Vouglans,  is  in  reality  anti-human  and 
reactionary,  since  it  tries  to  reproduce  a  barbarous  phase  of 
penal  justice.^  So  true  is  this  that  whereas  we  think  that  the 
pain  of  the  condemned  is  admissible  neither  as  object  nor  as 

1  See  for  example  the  laws  of  Manu  cited  by  Durckheim,  "Divison  du  travail 
social,"  p.  151,  "To  aid  kings  in  their  functions,  the  Lord  created  from  the  be- 
ginning chastisement.  Chastisement  controls  mankind;  chastisement  protects 
mankind;  chastisement  watches  while  men  sleep;  chastisement  is  justice." 


§259]     ECLECTIC  THEORIES  OF  RESPONSIBILITY         389 

means  in  penal  justice,  and  whereas  we  substitute  for  it  as  object 
social  conservation,  and  as  means  the  preventive  cure  of  the 
environment  and  the  individual  clinic  of  the  convict, —  the  eclec- 
tic adherents  of  the  principle  of  intimidation  declare  that  this 
principle,  "without  leading  us  back  to  the  cruelties  of  the  Middle 
Ages,  certainly  requires  that  penalties  shall  have  a  certain  sever- 
ity." ^  This  severity,  in  consequence  of  inevitable  abuses,  will 
lead  to  real  tortures,  which  penalties,  indeed,  are  even  to-day 
beginning  with  the  cellular  systems,  as  we  shall  see.  It  is 
useless  to  reply  that  practical  abuses  occur  with  every  principle, 
as  with  the  principle  of  vengeance  and  expiation.^  Evidently 
these  inevitable  abuses  which  they  have  in  common,  show  nothing 
more  than  that  these  principles  belong  to  the  instructive  and 
barbarous  phases  of  penal  justice. 

In  the  principle  of  intimidation,  especially,  the  tendency 
to  increase  in  severity  is  a  logical  and  therefore  inseparable 
consequence  of  the  principle  itself,  much  more  so  than  in  the 
principle  of  vengeance,  legal  retribution,  or  any  other.  Of 
itself  the  spirit  of  vengeance  may  lead  to  a  like  tendency  and 
carry  the  sufferings  of  convicts  to  excess;  in  vengeance,  resent- 
ment and  hatred  exaggerate  the  penalty;  but  in  intimidation 
it  is  the  over-logical  reasoning  that  if  the  penalties  inflicted  have 
been  insufficient  to  prevent  past  crimes,  they  should  be  aggravated 
in  the  illusory  hope  that  they  will  thus  become  an  efficacious 
remedy  against  future  crimes.  If,  on  the  contrary,  penal  justice 
be  considered  as  a  cUnic  designed  to  combat  a  social  and  indi- 
vidual malady,  abuses  are  reduced  to  isolated  cases  and  increas- 
ingly rare  exceptions.  Formerly  when  the  insane  were  hated, 
despised,  and  punished,  the  excess  of  torment  inflicted  upon  them 
was  an  inevitable  consequence  that  disappeared  Avith  the  recog- 
nition that  the  insane  were  simply  more  or  less  dangerous  sick 
persons  in  need  of  treatment.  It  will  be  the  same  in  the  treat- 
ment of  criminals.  Suffering  will  be  restricted  to  the  limits  of 
therapeutic  necessity.  Excesses  in  the  severity  of  punishment 
will  no  longer  have  a  reason  for  existence,  whereas  excesses  can- 
not fail  to  be  continually  stimulated  by  the  illusory  and  anti- 
social principle  of  intimidation. 

'  Lanza,  "Fondamento  razionale  e  fini  della  pena,"  Introd.  in  the  "Foro 
penale"  (August,  1899),  p.  192,  a  reproduction  of  a  chapter  in  his  "Trattato  di 
diritto  penale"  (Bologna,  1895),  P.  I,  pp.  500  et  seq. 

*  Cuche,  "L'avenir  de  Tintimidation,"  in  the  "Revue  p^nitentiaire"  (June, 
1S94),  p.  386. 


390  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  260 

§260.    Eclectic  Theories  of  Responsibility :  Normality  —  Poletti. 

Poletti,  who  indeed  understood  even  before  the  positivist 
school  the  scientific  weakness  of  the  classical  penal  theories,  but 
who  did  not  consider  it  necessary  to  go  as  far  as  the  logical  con- 
clusions of  the  new  theories,  particularly  the  idea  of  social  account- 
ability, thought  that  the  basis  of  responsibility  in  criminals  is  to 
be  found  in  what  he  calls  "normal  action."  He  had  already  in 
an  earlier  essay  indicated  this  theory  in  giving  an  unwarranted 
extension  to  an  idea  of  Drill,  Drill,  indeed,  had  said  "that  it 
was  necessary  in  fixing  a  starting  point,  to  establish  the  type  of  the 
normal  social  man,  a  type  which  must  vary  with  society  and 
which  represents  the  man  capable  of  living  an  independent  life  in 
a  given  society.  It  is  difficult  to  determine  this  type;  but  in 
every  society  there  is  a  minimum  of  its  realization  —  a  minimum 
below  which  a  man  is  no  longer  adapted  to  the  life  in  common. 
Children,  aged  persons,  whose  minds  are  weakened,  criminals, 
the  insane,  do  not  reach  the  minimum:  these  individuals  serve 
to  prove  that,  given  the  same  exterior  conditions,  men  are  not 
all  capable  by  reason  of  their  psycho-physical  constitution  of 
acting  as  the  typical  man  would  act."  ^ 

Drill,  who  is  one  of  the  most  illustrious  representatives  of  the 
positivist  school  among  the  Russians,  does  not  at  all  give  the 
minimum  of  normality  as  the  reason  for  responsibility,  since  he 
speaks  at  the  same  time  of  children,  the  aged,  criminals  and  the 
insane.  He  has  only  noted  the  positivistic  fact  that  the  condi- 
tions of  social  coexistence  impyose  on  every  individual  a  mini- 
mum of  adaptation  to  given  conditions,  under  penalty  of 
separation  from  society  for  those  who  do  not  measure  up  to  it. 
Poletti  understood  this  idea  to  be  that  "the  author  of  a  crime 
in  order  to  be  responsible  for  the  criminal  action  must  present 
in  his  person  at  least  the  minimum  of  that  state  which  science 
deems  necessary  to  constitute  a  normal  man."  This  is  ob^^ously 
quite  a  different  idea  and  has  a  quite  different  extension.^  In 
a  later  essay  on  normal  action  as  the  base  of  the  responsibiUty 

1  "Les  jeunes  criminels,  etude  sur  la  question  de  la  delinquence  consideree  dans 
ses  facteurs  et  dans  les  moyens  de  la  combattre"  (in  Russian  Moscow,  1884); 
"Crimineb  mineurs,  psychologie  generale  de  la  criminalite"  (Moscow,  1888); 
"Types  psycho-physiques,  psychologie  speciale  de  la  criminalite"  (Moscow, 
1890).  Resum^  of  Lombroso  and  Morro,  "SugU  ultimi  studi  di  antropologia 
criminale  in  Europa,"  R.  C.  (1885),  p.  397;  of  Frankel,  A.  C.  A.  C.  (15  January, 
1891). 

*  Poletti,  "La  persona  giuridica  nella  scienza  del  diritto  penale,"  pp.  145,  146. 


§260]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  391 

of  delinquents/  he  developed  the  idea  that  "only  the  normal 
man  can  become  delinquent  and,  hence,  responsible  for  crime, 
inasmuch  as  the  foundation  of  his  responsibility  is  found  in  the 
internal  systematization  and  extrinsic  evolution  of  normal  action." 
And  for  this  reason  he  maintains  that  not  only  the  insane  but 
even  criminals  by  congenital  tendency  and  recidivists,  "whose  re- 
habilitation should  be  put  under  the  head  of  a  sentimental 
illusion"  cannot  be  responsible,  since  they  are  not  normal 
men.  Poletti  certainly  does  not  dispute  that  society  must 
defend  itself  against  insane  criminals,  criminals  by  birth,  and 
recidivists,  but  he  does  insist  on  the  habitual  idea,  so  often  re- 
futed, that  in  their  case  there  is  no  question  of  a  true  punish- 
ment, but  only  of  poUtico-social  measures  of  preservation,  since 
only  normal  men  are  responsible  for  their  crimes  and,  hence,  pun- 
ishable. In  any  event,  the  logical  consequence  of  this  eclectic 
theory  of  the  irresponsibility  of  not  only  insane  criminals  but 
also  of  criminals  by  congenital  tendency  and  habitual  criminals 
(the  most  dangerous),  is  sufficient  for  a  judgment  of  the  theory 
itself.  There  are,  however,  other  considerations  against  it,  which 
demonstrate  its  evident  insufficiency.  Since  not  only  Poletti 
but  others  also,  GabeUi,  Fulci,  Tarde,  Joly,  Dortel,  Thierry,  Riant, 
Liszt,  and  Maus,  to  mention  the  more  recent,  without  confining 
themselves  to  the  traditional  theories  of  the  classical  school, 
nevertheless  insist  upon  the  alleged  distinction  between  normal 
and  abnormal  criminals,  it  may  be  well  to  recall  a  significant  his- 
torical precedent.^  When,  after  some  studies  in  positivist  psy- 
chology, I  began  to  occupy  myself  with  criminal  anthropology, 
the  idea  which  spontaneously  came  to  my  mind  was  this:  "The 
anthropologico-criminal  theories  of  criminal  man  revealed  by 
Lombroso  do  not  reach  the  basis  of  punitive  law  and  criminal 
science,  because  the  field  of  action  is  different.  In  other  words, 
in  the  mass  of  criminals,  there  are  those  who  are  such  through 
a  defect  in  their  constitutional  organism  and  their  education, 
which  inevitably  must  induce  a  criminal  life  without  possibility 
of  correction:  and  there  are  also  habitual  criminals,  incorrigible 
only  because  of  an  abnormal  organic  development,  who  cannot 
be  satisfied  with  the  common  lot." '    This  "acto  finium  regun- 

^  Poletti,  "  Normal  action  as  the  base  of  the  responsibility  of  deliquenta." 
(Udine  1889)  pp.  143,  122,  and  133. 

*  Ferri,  "Polemica  in  difesa  della  scuola  criminale  positiva,"  pp.  117  et  seq. 
'  "Teoria  della  imputabilit^/'  p.  477,  8. 


392  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  261 

dorum,"  as  Fioretti  ingeniously  calls  it,  has  been  fully  developed 
by  me  in  the  monograph  on  the  "Boundaries  between  penal 
law  and  criminal  anthropology,"  ^  where,  in  giving  for  the  first 
time  the  classification  of  criminals  in  five  categories  I  finished 
with  "a  positivist  conciliation  between  criminal  anthropology 
and  law.  The  former  being  turned  back  to  its  natural  limits,  that 
is,  the  study  of  the  criminal  insane  and  of  those  born  incorrigible 
or  become  such  by  habit,  while  criminal  law,  although  guided 
by  a  method  and  by  criteria  differing  in  part  from  those  in  vogue 
hitherto,  retains  as  its  free  and  exclusive  domain  the  occasional 
criminal."  ^  This  was  evidently  a  middle  term,  a  compromise 
between  the  old  ideas  and  the  new,  just  as  in  "La  teoria  dell* 
imputabilita,"  while  rejecting  the  criterion  of  the  free  choice, 
I  stopped  at  the  criterion  of  normal  intelligence.  Nevertheless, 
my  thought  was  not  long  in  accomplishing  its  whole  evolution 
and  gradually  advanced  as  far  as  the  idea  of  social  accountability 
and  the  inclusion  of  the  five  categories  of  criminals  among  the 
attributions  of  defense  of  society,  or  criminal  sociology.^ 

§  261.    Criticism  of  the  Theory  of  Poletti. 

In  fact,  in  1883  I  wrote:  "While  in  my  *Nuovi  Orizzonti'  (1st 
edition)  I  said  that  certain  classes  of  dehnquents  were  without 
the  bounds  of  criminal  law  and  must  be  considered  only  by 
criminal  anthropologists  and  treated  with  measures  foreign  to  legal 
criteria,  I  have  since  renounced  this  theory  as  inaccurate,  because 
criminal  anthropology  is  considered  by  the  positive  method  as  an 

1  S.  P.  (31  August,  1891). 

2  A.  P.  (1880),  I,  444.  and  "Nuovi  Orizzonti,"  1st  ed.,  p.  52. 

^  I  like  to  compare  the  gradual  evolution  of  my  scientific  thought  reaching 
in  the  field  of  criminology  from  premises  of  fact  to  logical  and  radical  consequences, 
with  another  gradual  evolution  made  by  my  thought  in  the  sociological  field,  when 
(in  1892  to  1903  after  the  first  edition  of  this  book)  giving  myself  over  to  a  deep 
study  of  Marxist  doctrines,  I  reached  this  radical  conclusion,  "Sociology  must 
be  socialistic." 

Because  of  pohtical  opposition,  this  last  evolution  which  I  eflfected,  always 
progressive  and  never  inverse,  like  that  of  many  of  my  critics  and  adversaries,  such 
as  Garafalo  and  Colajanni,  has  aroused  great  discussion  and  criticism.  But  it  gives 
a  new  proof  that  my  scientific  feeling,  in  place  of  advancing  through  sudden  im- 
pressions, develops  gradually  by  a  study  of  facts,  just  as  (and  this  is  still  another 
proof)  in  1897,  when  I  subjected  sociologico-criminal  doctrines  to  a  new  examina- 
tion in  the  light  of  Marxist  sociology  through  a  gradual  evolution,  I  completed 
my  thought  on  penal  justice  as  the  instrument  of  class  defense  (and  not  only  of 
social  defense),  as  I  explained  in  my  "Justice  penale,"  and  as  I  have  developed 
more  systematically  in  the  4th  Italian  edition,  Section  53,  and  the  2d  French 
edition.  Section  53. 


§261]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  393 

integral  part  of  criminal  law.  In  fact  all  means  of  defense  against 
every  kind  of  delinquent  are  part  of  criminal  law."  ^  Thus,  I 
frankly  overrule  the  theory  which  I  first  followed,  and  believe 
that  its  scientific  barriers,  as  Turati  calls  them,  are  arbitrary  and 
irrational.  For,  as  we  now  look  upon  punishment  (in  conformity 
with  the  positivistic  doctrine)  as  an  act  of  social  defense  against 
the  authors  of  anti-social  acts,  the  reason  why  society  reacts  in 
self-defense,  for  example,  against  the  occasional  murderer,  must 
be  the  same  as  that  which  causes  it  to  react  in  self-defense  against 
the  murderer  prompted  by  insanity  or  congenital  tendency;  of 
course,  the  form  of  defensive  reaction  must  fit  particular  conditions 
of  the  agents  and  the  acts.  Consequently,  the  idea  of  Poletti 
that  only  a  normal  man  can  be  made  responsible  for  crime,  cannot 
be  accepted.  Similarly,  the  essential  (and  not  merely  formal) 
distinction  advanced  between  the  confinement  of  the  occasional 
delinquent  in  a  prison  and  that  of  an  insane  delinquent  in  a 
madhouse  disappears,  for  it  is  based  on  an  eclectic  conciliation 
between  the  old  and  the  new,  which  doubtless  exists,  but  which 
is  both  insufficient  and  untrue.  But  besides  these  indirect  reasons 
why  the  idea  of  normality  is  inacceptable  as  a  basis  of  responsi- 
bihty  because  of  the  practical  consequences  which  it  entails  and 
the  psychological  origin  from  which  it  is  derived,  there  are  other 
and  weightier  objections.  First,  as  Clemence  Royer  said,  "The 
normal  being  constituted  according  to  the  mesne  type  of  the 
species  is  no  more  morally  responsible  for  his  acts  from  a  psychical 
or  physical  point  of  view  than  the  abnormal  man.  A  human 
being  is  no  more  responsible  for  his  virtues  than  his  vices.  It 
is  not  his  efforts  that  make  him  a  Saint  Vincent  de  Paul  rather  than 
Lacenaire,  Regulus  rather  than  Catiline."  ^  But  above  all  other 
objections  there  is  one  which  cannot  be  overcome,  that  is,  that  the 
positive  data  of  criminal  bio-psychology  absolutely  disprove  the 
idea  of  a  normal  delinquent.  A  truly  normal  man  does  not  commit 
crime:  a  crime  always  shows  abnormality,  either  congenital  or 
acquired,  permanent  or  transitory.  An  insane  criminal,  like  the 
born  or  habitual  criminal,  commits  crime  because  he  lacks  moral 
or  social  sense,  either  from  birth  or  by  subsequent  degeneration. 
An  occasional  criminal  is  not  totally  lacking  in  social  sense,  but  it 
is  feeble  and  incapable  of  resisting  internal  and  external  anti-social 
influences.     Neither  does  a  criminal  through  passion  lack  it,  but 

^  "La  scuola  positiva  di  diritto  criminale"  (Sienna,  1883),  p.  35. 
«  "Actes  du  2*™e  congrea"  (Paris,  1890),  p.  357. 


394  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  262 

it  is  momentarily  paralyzed  by  the  slow  or  sudden  attack  of  a 
passion  which  will  excuse  him  if  it  is  social,  that  is  to  say,  moral, 
such  as  honor,  love,  or  self-preservation;  but  which  will  not  excuse 
him  if  anti-social  or  immoral,  such  as  cupidity,  vengeance,  hate,  or 
lust.  Just  as  will  does  not  make  the  fool,  so  will  does  not  make  the 
criminal.  We  cannot  say,  therefore,  that  only  the  normal  criminal 
is  responsible,  because  this  phrase  connotes  a  psychological  impos- 
sibility and  contains  a  contradiction  in  terms;  —  burning  ice  or 
shady  sun  are  not  more  illogical  phrases.  In  the  last  place,  a  final 
objection  can  be  made  to  Poletti's  theory  similar  to  that  which  we 
have  already  made  to  GabeUi.  There  is  no  line  of  demarcation  be- 
tween crime  and  insanity.  Nature  does  not  advance  by  leaps, 
but  gradually.  It  is  we  who  speak  of  abrupt  demarcations  where 
there  is  only  a  gradual  passion  and  a  series  of  shaded  changes 
from  one  state  to  another.  The  "  intermediate  zone  "  of  Maudsley, 
the  acceptance  of  which  alone  shows  that  it  is  impossible  to  sep- 
arate morally  responsible  delinquents  from  those  who  are  morally 
irresponsible,  does  not  lie  only  between  insanity  and  crime,  but 
also  between  normality  and  abnormahty.  How  can  one  deter- 
mine whether  non-typical  delinquents,  intermediaries  between 
one  type  and  the  other,  are  normal  or  not.''  Poletti  saw  this  weak 
point  in  his  theory,  and  in  order  to  overcome  it,  wrote,  "It  is  pos- 
sible to  determine  the  minimum  of  normaUty,  although  every 
one  knows  that  we  will  always  be  able  in  practice  and  in  any 
particular  case  to  argue  about  normality,  and  where  it  ceases."^ 
"This  line  of  separation  is  absolutely  ideal,  for  there  are  no  certain 
limits  between  normal  and  abnormal  action;  there  are  only 
steps  which  show  the  change  from  one  to  the  other  without  ever 
letting  us  see  with  any  certainty  the  point  where  the  change 
occurs."  2  How  can  we  have  a  scientific  theory  which  is  so  evi- 
dently incapable  of  practical  application  to  the  daily  needs  of 
social  protection? 

§  262.     Criticism  of  the  Theory  of  Liszt. 

These  critical  observations  which  we  have  made  of  the  theory 
of  normality  are  so  true  that  recently  Liszt,  who  had  remained 
undecided  between  the  old  and  the  new  ideas,  and  who  in  an 
address  to  the  Psychological  Congress  at  Munich,  in  August, 
1896,  still  insisted  on  a  distinction  between  normal  and  abnormal, 

^  Poletti,  "La  persona  giuridica  nella  scienza  del  diritto  penale,"  p.  145. 
*  Poletti,  "L'azione  nonnale"  (Udine,  1889),  p.  93. 


§263]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  395 

making  psychical  normality  the  basis  of  responsibility  of  the  de- 
linquent, has  finally,  in  his  polemic  against  the  criticisms  of  this 
theory,  which  is  Poletti's  rather  than  his  own,  declared  explicitly 
that  all  demarcation  between  the  normal  and  the  abnormal,  the 
responsible  and  the  irresponsible,  the  insane  and  the  criminal, 
and,  consequently,  between  punishment  and  measures  of  security, 
is  absolutely  impossible.^ 

But  Liszt  still  remains  in  the  hazy  zone  of  eclecticism;  having 
declared,  and  repeatedly,  that  the  superannuated  antithesis 
between  punishment  and  measures  of  preservation  must  be  aban- 
doned, he  continues  in  the  belief  that  a  relative  criterion  of  im- 
putability  can  be  found  in  the  normal  determinability  of  motives. 
All  the  objections  to  the  theory  of  Poletti  just  stated  are  appHc- 
able  to  this  opinion.  His  obstinacy  is  in  vain.  We  must  have 
the  scientific  courage  to  accept  all  the  logical  consequences  of 
natural  determinism.  From  the  moment  that  we  cease  to  con- 
sider crime  as  the  fiat  of  free  will,  but  look  upon  it  as  the  product 
and  pathological  symptom  of  individual  and  social  anomahes, 
every  criminal,  insane  and  sane,  is  morally  irresponsible,  although 
all  must  answer  to  society  for  their  anti-social  acts.  Conse- 
quently, there  is  no  distinction  to  be  made  between  morally 
responsible  and  irresponsible  delinquents,  between  punishment 
and  measures  of  protection.  There  are  no  different  forms  based 
on  different  criteria  for  the  same  function  of  preservative  meas- 
ures, as  I  will  show  in  the  next  few  pages.  No  longer  in  our 
hospitals  and  insane  asylums  do  we  distinguish  whether  the 
disease  was  caused  by  vice,  imprudence,  or  chance.  We  are 
content  to  fit  the  treatment  to  the  state  of  the  patient  and  the 
nature  of  his  disease. 

§  263.    The  Eclecticism  of  Tarde. 

Of  all  the  eclectic  theories  of  responsibility  the  most  original 
is  that  developed  by  Tarde,  not  a  creative  genius  but  a  close  critic 
and  an  ingenious  weaver  of  more  or  less  positive  ideas.  He  has 
developed  recently  a  latent  spiritualism  which  is  hard  to  reconcile 
with  his  first  publications.  Even  in  his  "Criminahte  compa- 
ree,"  on  the  subject  of  hypnotic  suggestions  and  responsibility, 

1  Liszl,  "  Die  strafrechtliche  Zurechnungsfahigkeit "  (1896),  XVII,  75,  76. 
Liszt  again,  and  more  specifically,  insisted  this  impossibility  after  the  criticism 
of  Fomitsky,  A.  C.  A.  C.  (Geneva,  1897),  p.  305,  when  I  said  (p.  307)  that  the 
"Normal  determinability  of  Liszt  was  only  a  reproduction  of  an  idea  of  Poletti, 
criticised  in  my  third  edition  (1892),  p.  229. 


396  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  263 

he  showed  signs  of  the  theory  which  he  has  since  developed 
in  his  report  on  the  old  and  new  basis  of  moral  responsibility  for 
the  Second  International  Congress  of  Criminal  Anthropology, 
and  which  he  has  further  developed  in  his  "Penal  Philosophy."  ^ 
It  is  impossible  here  to  quote  from  Tarde,  because  he  habitually 
indulges  in  a  mass  of  embroideries  and  arabesques  and  prolix 
secondary  ideas;  but  his  theory  can  be  outlined  as  follows:  moral 
responsibility  is  not  necessarily  bound  up  with  the  existence  of 
free  will  (denied  by  Tarde),  but  it  is,  nevertheless,  the  indispensa- 
ble condition  and  measure  of  criminal  responsibiUty,  which,  how- 
ever, is  founded  on  other  criteria  and  other  elements.  These  are 
personal  identity  of  the  delinquent  with  himself  before  and  after 
the  commission  of  the  crime,  and  his  social  similarity  to  those 
among  whom  he  Uves  and  acts  and  by  whom  he  must  be  punished. 
If  either  of  these  conditions  is  lacking,  the  individual  is  not  morally 
responsible  for  the  crimes  which  he  commits,  although  society 
may  take  precautionary  action  against  him  of  an  administrative 
and  non-penal  character.  Thus  cases  of  irresponsibility  are  found 
side  by  side  with  those  of  moral  responsibility.  They  are  insanity, 
drunkenness,  atavism,  senility,  moral  perversion  and  duress. 
Tarde,  in  reply  to  the  able  criticisms  of  his  theory  made  by  Cic- 
carelli  in  the  name  of  positivism,  denies  that  it  is  inspired  by 
eclecticism  "for  it  is  connected,"  he  says,  "to  a  whole  system  of 
ideas  which  I  myself  have  developed  and  which  have  nothing  in 
common  with  an  amalgam  of  incoherent  ideas."  ^  Without 
questioning,  however,  that  this  theory  answers  in  Tarde's  mind 
to  a  smn  of  ideas  which  are  his  own  (imitation  or  invention),  it 
is  none  the  less  true  that  this  sum  is  to  a  large  extent  eclectic  with 
a  greater  or  less  tendency  toward  socialism  in  the  form  of  social 
psychologism.  ^  Its  eclecticism  becomes  more  apparent  when 
one  reflects  that  although  it  destroys  free  will,  it  preserves  the  old 

^  Tarde,  "La  criminalite  comparee,"  pp.  149  et  seq.,  2d  ed.  (Paris,  1890),  pp.  143 
el  seq.;  "Les  anciens  et  les  nouveaux  fondements  de  la  responsabilite  morale," 
A.  A.  C.  and  A.  C.  A.  C.  (Paris,  1890),  pp.  92,  346;  "La  philosophie  penale" 
(Lyons,  1890),  Chap.  Ill,  IV;  "L'idee  de  culpabilite,"  R.  D.  M.  (15  June,  1891). 

*  CiccareUi,  "Tarde  e  la  risponsabilita  penale"  (March,  1890);  Tarde,  "Lettera 
al  profesor  Zucarelli,"  id.  (March,  1890). 

•  Tarde,  "Les  lois  de  I'imitative"  (Paris,  1890),  criticised  by  Fioretti  in  the 
"Scuola  positiva"  (15  August,  1891).  As  to  the  value  of  these  sociological  laws 
of  Tarde,  which  preserve  the  old  spirituaUstic  conception,  according  to  which 
social  facts  are  determined  by  psychological  facts,  while  the  inverse  is  the  truth 
provided  that  the  psychological  activity  is  above  all  a  product  of  society,  see 
Ferri,  "La  teoria  sociologica  del  Tarde,"  S.  P.  (September,  1885). 


§264]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  397 

idea  of  moral  responsibility,  and  that  consequently  on  the  one  hand 
it  bases  the  right  to  punish  in  conformity  with  the  classic  theories 
on  the  conditions  of  the  individual  (personal  identity),  and  on  the 
other,  in  conformity  with  positivistic  theories,  on  social  consider- 
ations (social  resemblance).  It  is,  therefore,  a  theory  which  is 
neither  fish,  flesh,  nor  fowl.  The  precedents  of  this  theory  show 
marks  proving  the  eclecticism  or  desire  of  conciUation  of  which 
it  is  born.  For  the  idea  of  personal  identity  considered  as  a 
condition  of  responsibiHty  was  impHcitly  contained  in  that  part 
of  the  classic  theory  where  physical  responsibility  is  accepted,  to 
which  we  also  give  our  acceptance  because  it  is  a  positive  and 
exact  principle.  In  other  words,  in  order  to  punish  a  man  for 
a  crime  he  must  be  physically  responsible  for  it.  That  is,  he 
must  be  the  author  of  the  act  in  the  sense  that  it  is  his  —  a  mani- 
festation and  actual  effect  of  his  personality  (temperament  and 
character),  and  it  must  be  a  result  of  his  manner  of  acting  and 
reacting  in  the  social  environment.^  On  the  other  hand,  I  recog- 
nized the  idea  of  the  social  similarity  between  him  who  commits 
a  crime  and  him  who  pmiishes  not  only  by  saying,  as  Sighele 
noted ,^  "that  the  spirit  of  law  is  found  not  only  in  the  moral  or 
ideal  relation,  but  in  the  physical  and  organic  relation  as  well," 
but  also  when  I  said  on  the  subject  of  the  natm-al  evolution  of 
homicide  that  this  crime  did  not  exist  until  the  victim  and  the 
murderer  belonged  to  the  same  species.  Garofalo  also  pointed 
this  out  in  his  "  Criminalogia,"  stating  that  we  could  not  call 
the  most  abnormal  criminals  fellow-beings.  So  strongly  did  he 
feel  this  that  he  said  one  of  the  reasons  for  his  belief  in  capital 
punishment  was  that  it  did  not  arouse  too  much  compassion  when 
it  is  applied  "to  certain  criminals  who  have  shown  their  complete 
lack  of  human  feeling  provided  that  pity  and  sympathy  do  not 
exist  for  men  who  have  no  resemblance  to  us." 

§  264.    Original  Development  of  the  Eclecticism  of  Tarda. 

But  whatever  the  origin  of  the  theory  of  Tarde  may  be,  it  has 
shown  an  original  development  which  we  must  examine,  subjecting 

^  It  is  in  this  sense  Bind,  "La  responsabilite  morale,"  in  the  "Revue  philoso- 
phique"  (September,  1888),  saying  that  "free  will  cannot  be  meant  scientifically 
by  the  word  liberty,  but  only  an  activity  in  conformity  with  the  character  of  the 
individual"  (physical  liberty),  showed  that  this  was  the  true  part  of  Tarde's 
theory;  and  yet  he  concluded  by  approving  the  theory  of  responsibility  of  the 
Italian  positive  school. 

*  Sighele.  " BibUography  of  Tarde's  'Philosophic  p6nale'"  A.  P.  (1890),  XI,  567. 


398  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  264 

it  to  criticism  first  as  to  form,  and  then  as  to  substance.  First, 
however,  we  must  answer  the  question  as  to  whether  the  two 
** identities"  must  coexist,  or  whether  one  of  them  is  sufficient 
to  make  a  man  morally  responsible  for  his  crime.  Tarde  is  not 
specific  on  this  point.  He  says  that  congenital  criminality  or  moral 
insanity  is  precisely  the  inverse  of  true  insanity,  for  the  latter  is 
an  hallucination  of  personality  and  consequently  identity  does 
not  exist,  but  similarity  remains,^  while  congenital  criminality 
is  the  manifestation  of  a  personality  which  fails  in  self-consis- 
tency and  self -identity,  but  which  does  not  resemble  other  men. 
"Consequently,  in  the  first  case  as  well  as  in  the  second,  the  two 
conditions  are  not  both  present;  but  in  the  first  (insanity)  the  prin- 
cipal condition  ("identity")  is  entirely  lacking,  and  in  the  second 
(congenital  criminahty  or  moral  imbeciUty)  the  accessory  con- 
dition (similarity)  alone  is  lacking,  and  perhaps  lacking  only  in 
part."  From  this  it  follows  that  p)ersonal  identity  is  the  indis- 
pensable condition  of  responsibility;  and  Tarde  forthwith  allows 
the  death  penalty  for  congenital  criminals,  although  no  social 
similarity  can  be  found  in  their  case.  But  this  difference  in  im- 
portance between  identity  and  similarity  is  a  weak  and  obscure 
point  in  his  theory,  and  in  order  to  escape  from  the  difficulty 
Tarde  is  obliged  to  use  at  times  expedients  too  arbitrary  to  be  sci- 
entific. Of  this  we  need  to  give  but  few  examples.  He  is  forced 
to  contend  that  there  cannot  be  a  radical  difference  between  the 
congenital  criminal  and  other  men,  although  congenital  delin- 
quency patently  constitutes  the  greatest  difference  which  can 
contradistinguish  a  man  from  his  fellows  on  the  point  which  is  of 
the  greatest  social  importance,  that  is,  in  a  moral  or  social  sense. 
On  the  subject  of  habitual  drunkenness  and  the  responsibility 
which  must  be  accorded  to  the  habitual  drunkard,  he  says,  "Vic- 
tims of  the  opium  habit  or  alcoholism  are  powerless  to  escape 
their  fate,  but  the  power  which  urged  them  on  came  from  an 
internal  necessity  inherent  in  their  being;  and  in  that  it  differs 
from  the  essential  external  necessity  of  the  pathological  nature 
which  controls  them  when  the  insanity  caused  by  their  bad  habits 

^  In  answering  objections  advanced  by  Ferri,  Tarde,  "Pro  domo  mea"  in 
the  "Essais,"  p.  152,  explained  that  he  thought  both  conditions  necessary  to 
create  responsibility.  It  is  unnecessary  to  add  that  his  answers  did  not  persuade 
me,  and  that  I  maintain  my  attitude  against  his  theory,  which,  however,  did  not 
find  champions,  while  the  theory  of  social  responsibility  is  at  present  commonly 
accepted  by  all  who  abandon  even  to  a  slight  degree  the  traditional  ideas  on  fault 
and  chastisement. 


§264]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  399 

is  finally  manifested."  This  is  a  strong  way  of  distinguishing 
the  internal  from  external  power  in  the  same  individual,  and  of 
then  calling  the  external  constraint  the  pathological  force  of 
insanity.  Tarde  furthermore  holds  that  a  criminal  or  delinquent 
who  has  truly  repented  and  reformed  must  not  be  punished, 
"because  he  has  become  another  man."  The  real  reason  that  he 
should  not  be  punished,  however,  is  that  in  this  unfortunately 
rare  case  he  is  no  longer  dangerous  nor  insane,  and  because  pro- 
tection from  him  is  no  longer  necessary.  That  is  to  say,  that  it  is 
no  longer  necessary  to  make  a  repentant  man  pay  the  penalty 
(although  we  may  require  detention  for  a  certain  time)  when  he 
has  become  not  only  another  man,  but  also  is  no  longer  dangerous. 
If,  for  example,  a  murderer  repented  of  his  homicide  but  became 
inclined  to  burglary  or  arson,  he  would  certainly  be  another  man, 
but  he  wotdd  continue  to  be  unbalanced,  and  consequently  he 
would  have  to  continue  in  his  asylum.  Tarde  falls  into  still 
another  contradiction  in  distinguishing  between  the  voluntary 
change  in  personality  and  the  pathological  change  superinduced 
by  insanity,  epilepsy,  or  hypnotism,  although  both  result  in 
irresponsibility.  "In  the  pathological  case  the  new  ego  is  not  only 
not  responsible  for  the  acts  committed  by  its  predecessor,  but  it 
is  not  even,  or,  at  least,  is  hardly  responsible  for  its  own  acts, 
because  it  is  a  stranger  in  the  social  world  and  barely  identical  with 
itself;  in  the  voluntary  change  the  new  ego  is  superior  to  the  old 
in  social  feeling  and  identical  persistence.  But  putting  aside 
the  hypothesis  of  a  new  ego,  which  seems  to  enter  into  the  body 
of  the  individual  and  substitute  itself  for  the  old  ego,  as  one  key 
will  push  another  from  a  lock,  what  can  the  "greatest  persistence 
of  identity  "  in  the  repentant  criminal  be  except  a  figment  of  fancy; 
and  who  knows  whether  in  spite  of  the  sincerity  of  his  repentance 
new  temptations  may  not  induce  him  to  sin  again? 

Fonsegriev  is  right  when  he  says  on  an  analagous  subject  that 
the  homogeneity  of  human  character  (the  object  of  education  and 
culture)  is  neither  tenacious  nor  sure,  even  when  it  is  obtained 
by  means  of  pedagogics.  "It  is  a  precarious  state,  essentially 
unstable  and  needs  but  an  unforeseen  event  to  awaken  the  former 
man  and  bring  the  natural  heterogeneity  to  the  surface."  ^  But 
entirely  apart  from  these  arbitrary  expedients,  the  theory  of 
Tarde  contains  serious  contradictions.  First  of  all,  there  is  this 
strong  contradiction  in  the  admission  that  congenital  criminals, 
^  Fonsegriev,  "  L'homogeneit^  morale,"  R.  V.  (July,  1890). 


400  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  264 

although  lackmg  in  social  similarity,  are  still  responsible  and 
punishable  even  by  death;  but,  as  a  contrary  argument,  the 
question  is  asked  whether  the  anomalies  and  foUies  usual  to 
society  would  deprive  the  well-intentioned  or  heroic  victim  of 
hallucination  of  all  right  to  recompense  because  he  enjoys  no 
personal  identity  (when  his  hallucinations  are  upon  him)  or  social 
similarity.  Tarde  himself  accepts  the  social  observations  of 
Ball:  ^  "notwithstanding  that  he  had  passed  through  a  period 
of  insanity,  Newton  founded  a  system  of  physics;  August  Comte 
was  certainly  one  of  the  greatest  philosophers,  and  yet  he  had 
been  confined  in  a  madhouse;  Luther,  subject  to  hallucinations, 
still  effected  one  of  the  greatest  revolutions  of  modem  times; 
Joan  of  Arc  is  certainly  lauded  for  her  patriotism." 

All  that  is  true,  answers  Tarde.  Genius  is  an  anomaly,  as 
Lombroso  said,  but  there  is  no  contradiction  in  upholding  in 
such  cases  responsibility  and  recomi>ense  because  "there  is  noth- 
ing more  our  own  and  more  personal  than  an  anomaly  which  both 
distinguishes  us  from  and  likens  us  to  our  feUows;  while  insanity 
cannot  be  considered  as  an  individual  exception  to  the  typical 
rule,  but  as  a  perturbation  of  the  development  of  the  individual, 
it  could  almost  be  called  a  disindividualization." 

This  may  appear  true  of  acquired  insanity,  although  psychia- 
trists admit  this  perturbation  only  in  a  very  relative  sense  (in  very 
rare  cases,  for  example,  traumatic  insanity,  or  that  induced  by 
poisoning),  but  in  the  case  of  hereditary  insanity  (whose  existence 
we  must  admit)  the  individual  retains  his  self -identity,  and,  to 
quote  Ciccarelli,  "He  will  show  the  same  character  throughout  the 
whole  course  of  his  life,"  and  consequently  he  will  be  responsible, 
even  when  he  can  be  said  to  lack  social  similarity,  because  this 
quaUty,  being  accessory,  is  not  enough  of  itself  to  destroy  responsi- 
bility, for  the  very  reason  that  it  does  not  destroy  it  in  the  case 
of  congenital  criminals.  Tarde  answers  that  if  it  is  a  question 
of  an  innate  extravagance,  the  rules  that  I  have  given  concerning 
genius  and  crime  must  apply  to  this  alleged  illusion.  This  con- 
notes a  flagrant  contradiction,  and  makes  the  hereditary  idiot 
responsible.  It  is  well  known  that  insanity,  even  when  it  is  not 
apparent,  is  always,  save  in  very  rare  exceptions,  of  more  or  less 
hereditary  origin;  and  the  explanation  of  the  contradiction  must 
be  that  Tarde  rehes  on  a  very  inexact  idea  of  insanity  in  order  to 
reconcile  it  with  his  theory  when  he  says  that  "insanity  is  a  du- 
^  Ball,  "Partial  Responsibility  of  the  Insane." 


§265]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  401 

plication  of  personality,  something  of  a  moral  equivalent  to  a 
two-headed  monster."  The  fact  is,  however,  that  this  dupli- 
cation or  change  of  personality  is  the  exception.  In  insanity,  as 
in  normal  cases,  every  man,  according  to  the  phrase  of  Goethe 
"becomes  what  he  is."  That  is  to  say,  every  man  develops  person- 
ality that  he  has  inherited  at  birth  save  for  the  reflection  that  one 
side  or  another  of  the  physio-psychological  prism  takes  from  sur- 
rounding circumstances.  One  more  contradiction:  Tarde  con- 
cluded that  "impunity  because  of  irresponsibility  would  have 
no  consequences  harmful  to  society."  The  acquittal  of  an  insane 
man  will  encourage  nobody  to  imitate  him,  because  no  insane  man 
or  epileptic  has  power  of  will.  This  is  all  very  well,  but  we  must 
add  that  there  is  no  criminal  with  power  of  will.  If  Tarde,  who 
we  may  state  in  passing,  denies  the  existence  of  free  will,  denies 
this,  one  decisive  argument  must  suffice  to  controvert  him.  It  is 
impossible  to  commit  a  murder  with  a  burglarous  intent.  Roma- 
gnosi  is  right.  It  is  well  for  each  of  us  to  know  that  we  are  subject 
to  the  penal  code  when  one  is  speaking  of  villainies  or  crimes  com- 
mitted in  the  transport  of  passion  (evolutive  criminality)  or  in 
the  case  of  seK-defense,  but  it  is  not  at  all  applicable  to  atavic 
criminality.  When  I  was  a  student  at  the  University  of  Bologna, 
in  one  of  the  orgies  of  discussion  concerning  free  will,  which  were 
then  enjoyed,  I  overcame  one  of  my  adversaries  by  saying  that  I 
would  believe  in  his  free  will  if  he  would  disregard  any  of  the 
major  social  conventions,  such  as  to  traverse  the  city  in  daylight 
attired  only  in  his  shirt. 

§  265.    Eclectic  Theories  of  Responsibility:  Tarde,  Personal  Identity. 

And  vice  versa,  as  I  said  on  the  subject  of  intimidation, 
pathology  shows  that  the  insane  are  not  governed  by  the  same 
fundamental  motives  as  normal  men.  It  is,  therefore,  both  con- 
tradictory and  untrue  for  Tarde  to  hold  that  impunity  cannot 
exercise  a  contagious  influence  on  the  insane.  Finally,  unsur- 
mountable  objections  can  be  advanced  to  this  theory.  First,  in  re- 
gard to  personal  identity.  No  man,  sane  or  insane,  is  always  the 
same.  The  idea  of  a  homogeneous  personality  which  always  re- 
mains self -identical  in  normal  men,  and  which  duplicates  or  radi- 
cally changes  in  the  insane,  is  absolutely  unscientific.  "Ordinary 
observation  shows  how  little  cohesion  and  unity  the  normal  ego 
has"  by  consideration  of  human  personality  as  presented  at  any 
moment  of  individual  life.    Apart  from  simple  characters  (in  the 


402  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  266 

strict  sense  of  the  word  there  are  none)  there  are  in  each  of  us  ten- 
dencies of  all  sorts,  all  possible  contradictions,  and  among  these 
contradictions  all  kinds  of  intermediate  shades  and  mmaberless 
combinations  of  all  these  tendencies.  The  ego  is  not  only  a  store- 
house of  memories  bound  to  the  present,  but  a  mass  of  instincts, 
tendencies,  and  desires  which  are  in  fact  nothing  but  its  innate 
and  acquired  constitution  as  it  enters  upon  a  course  of  action,^ 

If  we  consider  personahty  in  its  volutive  formation  we  cannot 
doubt  that  it  changes  from  minute  to  minute  in  its  physio-psychic 
elements  and  their  combinations,  although  it  preserves  a  certain 
permanence.  So  in  the  case  of  a  river  that  one  always  calls  by 
the  same  name  although  at  each  moment  the  waters  which  form 
it  and  the  shape  of  its  course  are  changed.  We  can  speak,  there- 
fore, of  personal  identity  only  in  a  very  imprecise  and  relative 
way,  and  it  is  clear,  on  the  contrary,  that  the  occasional  passion- 
driven  criminal,  Uke  the  congenital,  cannot  be  considered  as  iden- 
tical to  himself  before  and  after  the  crime.  Thus  the  first  element 
of  moral  responsibility,  the  individual  element,  not  only  presents 
a  very  debatable  scientific  basis,  but,  furthermore,  is  so  vague  of 
itself  that  it  is  not  possible  to  look  upon  it  as  a  criterion  or  meas- 
ure of  the  social  function  against  crime,  which  requires  certain  and 
objective  criteria. 

§  266.    Eclectic  Theories  of  Responsibility:  Social  Similarity. 

The  other  element,  social  resemblance,  has  no  greater  scien- 
tific value.  It  is  really  a  pure  illusion  analagous  to  that  of  Poletti's 
normal  delinquents.  It  is  impossible  to  speak  of  criminals  who 
resemble  or  who  do  not  resemble  their  fellows.  The  data  of  crim- 
inal biology  and  physiology  show  that  all  delinquents  (above  all 
those  who  commit  natural  crimes  through  atavic  criminality), 
no  matter  to  what  category  they  belong,  are  more  or  less  abnor- 
mal. We  cannot,  therefore,  separate  the  dehnquents  similar  to 
their  fellows  from  those  who  are  dissimilar,  and  there  is  no  possi- 
bility of  marking  the  minimum  lack  of  resemblance  which  is 
equivalent  to  a  true  accord.  Tarde  also  makes  an  untrue  asser- 
tion on  this  point,  stating  that  punishment  requires  social  simi- 
larity. 

If  an  Australian  or  a  Zulu,  lately  arrived  here,  should  commit 
murder  who  would  dare  to  call  him  irresponsible?  Yet  he  differs 
from  us  as  much  as  possible.  "A  cannibal,"  said  Manouvrier 
^  Ribot,  "Les  maladies  de  la  personnalite,"  p.  37. 


§266]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  403 

wittily,  at  the  Congress  at  Paris,  "who  came  here  and  ate  a  small 
Parisian  boy,  would  vainly  have  his  attorney  plead  that  he  did 
not  belong  to  nor  have  anything  in  the  least  in  common  with  the 
society  of  his  prosecutors  and  his  victim."  ^  So  it  can  be  seen  that 
the  only  true  and  positive  reason  for  human  responsibility  which 
always  inexorably  comes  to  the  surface  is  the  need  of  social  pro- 
tection against  the  authors  of  every  anti-social  act,  whether  they 
be  identical  to  themselves  or  not,  and  whether  they  resemble  their 
fellows  or  not.  In  conclusion,  we  do  not  imderstand  how  Tarde 
can  have  said:  "To  understand  resi)onsibLhty  in  an  entirely 
objective  and  materialistic  sense  would  be  to  return  to  the  primi- 
tive days  when  (Edipus  was  judged  culpable  of  a  crime  that  he 
had  not  intended  nor  willed.  No  Catholic  need  repent  of  having 
eaten  meat  on  Friday  without  knowledge  or  intent;  and  for  the 
same  reason  society  cannot  condemn  a  man  for  the  harm  that  he 
has  done,  even  were  it  homicide,  if  he  acted  without  an  exercise 
of  will." 

Society,  however,  does  every  day  punish  homicides  committed 
without  the  exercise  of  will.  Furthermore,  it  is  clear  that  a 
denial  of  free  will  destroys  the  defense  of  insanity  in  homicide. 
On  the  other  hand,  as  I  have  already  stated,  it  is  entirely 
different  to  say  that  the  reason  of  individual  penal  responsibihty 
lies  in  the  objective  fact  that  the  individual  Hves  in  society,  than 
to  say  that  society  in  reacting  against  an  anti-social  act  must 
never  take  account  of  the  psychological  conditions  of  the  agent 
in  order  to  suit  the  defensive  means  to  the  offense  and  the  offender. 
Every  clinical  function  consists  in  finding  the  causes  of  the  disease 
and  fitting  the  remedies  to  the  conditions  of  the  patient  and  of 
the  place  where  he  lives.  The  same  method  must  be  used  for 
ordinary  patients,  for  the  insane,  and  for  criminals.  In  all  events, 
it  is  clearly  shown  that  the  eclectic  theory  of  Tarde,  like  the  other 
eclectic  theories,  is  not  only  incomplete  and  contradictory  in 
itself,  but,  above  all,  lacks  a  scientific  base  in  the  elements  which 
constitute  it.  There  remains  only  one  objection,  which  Ferri, 
Manouvrier,  and  Coutagne  have  already  made  to  Tarde's  theory 
in  the  Congress  of  Criminal  Anthropology  at  Paris.  Without 
regard  to  its  other  defects,  it  would  be  too  practically  dangerous 
and  uncertain  to  be  accepted.  If,  as  Tarde  admits  himself,  "there 
are  infinite  degrees  between  absolute  identity  (either  of  the  person 
or  social  circumstance)  an  inaccessible  ideal,  and  their  absolute 
»  "Actea  du  2*  congr^"  (Paris,  1890),  p.  371. 


404  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  267 

heterogeneity  equally  impossible  to  grasp,"  ^  it  is  clear  that  the 
two  criteria  of  resp>onsibility  would  be  insufficient  in  practice 
to  distinguish  the  men  who  should  be  punished  from  those  who 
should  not,  and  insufficient  in  the  intermediate  associations  be- 
tween insanity  and  crime  which  are  always  present  to  measure 
the  degree  of  responsibility. 

§267.    Eclectic  Theories  of  Responsibility:  State  of  Criminality. 

In  conclusion,  we  will  say  a  word  concerning  a  theory  recently 
advanced  by  Poustoroslew  of  the  University  of  Jouriew  to  show 
an  example  of  the  fantastic  reasoning  followed  by  eclectics.  He 
holds  that  criminahty  does  not  he  in  the  material  act  but  in  the 
agent  who  executes  it,  because  it  may  either  be  a  punishable 
homicide  or  a  legitimate  act  to  kill  a  man,  dependent  upon  the 
subjective  conditions  of  him  who  does  it.  On  this  point,  Pousto- 
roslew approximates  the  method  of  the  positive  school  and  con- 
siders the  delinquent  rather  than  the  crime.  As  a  consequence 
he  concludes  that  the  reason  for  accoimtabiUty,  and,  therefore,  of 
punishability,  consists  in  the  "state  of  criminality."  This  had 
already  been  vaguely  pointed  out  by  Foinitski  in  an  inaugural 
address  on  The  Theory  of  Punishment,  pubhshed  in  the  "Journal 
Judiciaire,"  of  St.  Petersburg,  in  1893,  where  allusion  is  made  to  the 
author  of  an  act  which  residts  in  harm.  "No  human  being  can, 
unless  he  is  in  an  individual  state  of  criminahty,  commit  a  crime 
or  misdemeanor,  but  each  of  his  harmful  acts  proves  in  its  turn 
the  existence  of  such  state  in  the  agent."  ^ 

This  theory,  moreover,  corresponds  in  a  vague  way  to  the  data 
of  criminal  anthropology  which  has  led  us  to  believe  that  the  ex- 
ternal occasions  of  physical  and  social  en\Tronment  are  not  suffi- 
cient "per  se"  to  produce  crime,  unless  reinforced  by  the  personal 
or  anthropological  factor  of  an  abnormal  organic  and  psychic 
constitution.  And  yet,  adds  Poustoroslew,  this  state  of  criminal- 
ity does  not  depend  upon  the  free  will  or  intelligence  of  the  in- 
dividual, but  is  rather  the  product  of  the  conditions  of  existence 
and  the  occasional  circumstances  which  surround  men  who  have 
led  honest  lives  prior  to  the  commission  of  the  crime  (he  does  not 
consider  the  case  of  police  contraventions);  and  in  the  case  of 
those  who  have  already  committed  other  crimes,  it  is  the  product 
of  a  temperament  which  tends  to  lead  them  into  a  state  of  crim- 

1  "Actes  du  Si*  congres"  (Paris,  1890),  p.  353. 

»  Poustoroslew,  "Criminalite  et  imputabilit6"  (Jouriew,  1889),  p.  10. 


§267]     ECLECTIC  THEORIES  OF  RESPONSIBILITY  405 

inality.  And  all  this,  although  he  declares  that  he  does  not  be- 
lieve in  the  existence  of  the  born-criminal  of  the  Italian  school, 
merely  because  he  believes  that  the  ItaUan  criminologists  think  a 
congenital  tendency  sufficient  in  itself  for  the  production  of  crime 
without  the  presence  of  physical  and  social  factors.  This  state  of 
criminality  constitutes  the  imputability  of  the  criminal,  simply 
because  it  can  be  seen  when  all  the  circumstances  denoting  excus- 
able error,  physical  distraint,  necessity,  and  invincible  hypnotic 
suggestion  which  prevent  the  act  imputed  to  the  agent  who  does 
it,  are  lacking. 

It  can  be  seen  at  a  glance  that  this  theory,  wavering  be- 
tween the  old  and  new  ideas,  is  as  incapable  as  the  present 
doctrines  of  breaking  away  from  the  supposed  necessity  of  an 
absolute  justification  of  human  responsibilities.  This  justification 
exists,  of  course,  in  a  complete  and  positive  form  in  the  simple 
fact  that  the  individual  lives  in  society.  Out  of  respect  for  tradi- 
tional principles  he  speaks  of  a  state  of  criminality,  which  in  its 
designation  of  the  anthropological  factor  of  crime  corresponds  to 
reaUty,  —  but  which  in  connecting  this  fact  of  imputabihty  intro- 
duces a  useless  double  meaning,  and  fails  to  give  a  positive  reason 
for  this  same  imputability  which  ordinarily  exists,  even  if  we 
admit  the  non-existence  of  free  will. 


CHAPTER  VI 

TWO   FINAL   PROBLEMS   OF   JUSTICE   WITHOUT   FREE   WILL 

Forms  of  social  saaction.     Criteria  of   social  sanction.     Preventive,  reparatory, 
repressive,  and  eliminative  means. 

§268.    Insiifficiency  of  Other  Theories  of  Responsibility  than  the 

Positive. 

We  have  taken  much  time  in  examining  the  different  theories 
of  responsibility  advanced  by  eclectics  who  waver  between  the 
classic  and  positive  theories,  and  we  can  now  conclude  that  while 
every  such  theory,  taken  by  itself,  has  been  found  inacceptable, 
they  all  present  the  same  common  characteristic,  because  they 
are  at  bottom  only  verbal  variations  of  the  old  theme  of  moral 
responsibility  founded  according  to  these  new  theories  no  longer 
on  absolute,  but  on  relative  and  Umited  moral  freedom.  All  that 
these  attempts  at  reconcihation  and  aflfiUation  between  the  old 
and  new  ideas  prove  is  "that  the  old  and  vague  notion  of  respon- 
sibility has  gone  for  good,  and  the  task  of  the  sociologist  is  not  to 
galvanize  it  into  life,  but  to  find  what  can  enter  in  its  place  in  the 
living  consciousness  of  humanity."  The  geocentric  illusion  that 
the  earth  is  the  center  and  the  foundation  of  the  cosmos  has 
long  since  disappeared,  so  also  the  anthropocentric  illusion  that 
man  is  the  lord  of  creation  and  that  he  of  all  animals,  because 
endowed  with  free  will,  can  dominate  and  determine  events  in 
place  of  being  governed  by  them,  must  go. 

Equally  buried  in  the  past  is  the  individuahstic  illusion  that 
denies  in  the  world  of  biology  the  infinite  power  of  physical 
and  psychical  heredity,  and  creates  in  the  field  of  sociology 
artificial  obstructions  between  the  individual  and  society.  How 
then  can  we  still  speak  of  the  moral  responsibility  of  the  indi- 
vidual for  the  acts  committed  by  him. 

Finally,  without  counting  that  all  the  eclectic  theories  have 
a  common  characteristic  similar  to  that  of  the  classical  theory, 
that  penal  responsibility  is  subject  to  the  conditions  and  tests 
of  moral  responsibility,  still  they  are  subject  to  the  danger 
of   making   the    most   dangerous    malefactors   irresponsible    be- 

406 


§269]  JUSTICE  WITHOUT  FREE  WILL  407 

cause  of  the  atavistic  form  of  their  criminal  activity.  Of 
course,  these  eclectic  theories  permit  society  to  take  administra- 
tive or  political  social  measures  against  dangerous  malefactors. 
This,  in  itself,  is  eclectic,  but  this  middle  term  does  not  answer 
because  belief  in  their  irresponsibility  cannot  easily  be  reconciled 
with  the  severity  of  the  measures  used;  and  defense  of  society  is 
weakened  and  enfeebled  (if  it  exists  at  all)  when  it  is  even  tolerated 
against  the  most  dangerous  atavistic  criminals  merely  as  a  conces- 
sion to  the  abstract  theory  of  the  simple  necessities  of  practical 
life.  Not  only,  therefore,  do  the  positive  studies  reviewed  in  the 
preceding  paragraphs  prove  the  scientific  truth  and  practical  util- 
ity of  the  positive  theory  of  responsibihty  as  a  basis  for  the  social 
function  of  prevention  of  crime,  but  a  criticism  of  the  classical 
and  eclectic  theories  considered  of  themselves  and  in  their  conse- 
quences brings  great  weight  to  bear  in  favor  of  positivism. 

§  269.     Application  of  the  Fundamental  F»rinciple  of  Responsibility  to  Crime. 

It  is  not  enough  to  have  established  the  fundamental  principle 
of  penal  responsibility  in  order  to  be  able  to  deduce  its  practical 
applications,  but  scientific  criteria  must  be  added  which  will  make 
it  possible  to  fit  this  responsibility  to  every  crime  and  every  crimi- 
nal. If  we  turn  our  attention  once  more  to  that  series  of  facts 
already  cited  as  examples  and  kinds  of  physico-biologico-social 
laws,  we  can  reach  another  positive  conclusion  which  will  com- 
plete the  fundamental  idea  of  social  accountability.  That  is  to 
say,  it  will  establish  a  rule  entirely  independent  of  the  moral  force 
of  the  agent.  For  although  law  of  itself  has  a  reaction  which  is 
constant  in  every  case  and  consequently  independent  of  what  the 
agent  has  or  has  not  willed,  still  the  character  and  intensity  of 
this  law  vary  in  different  classes  and  in  different  cases  of  the  same 
class.  This  is  true  not  only  in  the  social  order,  but  in  the  phys- 
ical and  biological.  A  man  who  leans  too  far  out  of  a  high  win- 
dow falls,  breaks  his  neck  and  dies,  while  he  who  trips  in  the  street 
gets  off  with  a  scratch.  So  he  who  swallows  poison  dies,  while 
he  who  gets  indigestion  is  sick  but  a  short  time.  So  he  who  over- 
works himself  for  a  short  time  gets  a  headache,  while  he  who 
disregards  his  health  for  years  ends  in  a  madhouse.  The  ignorant 
and  stupid  may,  therefore,  cause  a  social  reaction  similar  to  that 
of  the  slanderer  and  the  insolent,  but  very  different  from  that 
which  the  bankrupt  merchant  undergoes,  a  crazy  man  who 
attacks  a  passer-by,  or  a  driver  who  runs  over  some  one. 


408  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  269 

But  this  is  not  all.  If  for  each  one  of  these  social  acts  the 
quaUty  of  the  law  remains  basically  the  same,  still  the  degree  and 
severity  vary  according  to  the  circumstances  of  the  agent  and  the 
special  class  with  which  he  lives.  Of  two  slanderers  one  can  be  con- 
sidered heedless,  while  the  other  is  looked  upon  as  maUcious.  Of 
two  bankrupts  one  awakens  more  compassion  and  receives  more 
help  than  the  other.  The  two  convicted  drivers  do  not  necessarily 
undergo  imprisonments  of  equal  length.  All  this  leads  to  the  in- 
evitable conclusion  that  in  every  case  the  social  right  is  indepen- 
dent of  the  moral  fault  of  the  individual,  but  changes  in  quality 
and  degree  according  to  the  particular  circumstances  of  the  individ- 
ual, the  act,  and  the  society  in  which  he  Hves.  But,  just  as  in  the 
first  part  of  this  positive  induction  we  have  seen  that  it  was  logical 
and  necessary  to  extend  positivism  to  every  kind  of  social  law, 
and  including  the  restrictedly  penal  laws,  so  now  in  this  last  part 
which  completes  our  earUer  induction,  we  are  obliged  to  recognize 
that  even  in  laws  relating  to  crimes  properiy  so  called,  the  qual- 
ity and  degree  must  vary  with  the  different  circumstances  of  the 
individual,  the  act,  and  the  society  which  reacts. 

And  thereupon  we  can  reply  without  trouble  to  the 
criticism  first  made  by  Guyau  and  afterwards  repeated  by 
many  other  students  of  the  conception  of  social  account- 
ability which  I  have  advanced.  This  writer,  who  wavers 
constantly  between  old  and  new  ideas,  admits,  however,  that 
the  only  reason  which  justifies  punishment  is  its  necessity  and 
efficacy  for  the  defense  of  society;  — and  in  this  admission  he 
accepts  the  Italian  Positivist  School.  But  he  disagrees  with 
me  in  excluding  every  voUtional  and  intentional  element  from 
punishment.  "Social  laws,"  he  says,  "cannot,  no  matter  what 
Ferri  says,  be  simply  mechanical  hke  natural  laws.  Internal  and 
psychological  determinism  of  the  agent  must  receive  legal  con- 
sideration because  his  attention  (in  a  case  of  tort  or  negligence) 
and  intention  (in  the  case  of  crime)  must  be  weighed,  just  as  one 
must  consider  not  only  the  volume  of  a  waterfall,  but  its  momen- 
tum. This  is  why  the  criterion  given  by  Ferri  of  social  and  anti- 
social motives  governing  action  will  not  answer.  The  quaUty  and 
quantity  of  the  will  behind  it  must  be  considered." 

This  criticism  contains,  as  can  be  seen,  two  objections;  (a),  social 
laws  must  not  be  invariable  or  mechanical,  (6),  the  differential  test 
must  not  only  be  of  the  social  or  anti-social  quality  of  the  motives 
determining  the  act,  but  also  of  the  quaUty  and  quantity  of  the 


§269]  JUSTICE  WITHOUT  FREE  WILL  409 

will  promoting  it.  As  to  the  second  objection,  besides  what  I  shall 
say  hereafter  concerning  the  test  of  motives  determining  action, 
it  suflSces  to  observe  that  under  a  scientific  conception  of  will, 
it  becomes  very  difficult,  as  I  pointed  out  at  the  beginning  of 
this  chapter,  to  see  any  clear  and  definite  difference  between  the 
determining  motives  and  the  "will  which  is  back  of  them,"  but 
I  reserve  to  myself  the  right,  as  I  have  just  said,  to  show  in  a  later 
paragraph  the  entirely  sufficient  and  positive  character  of  the 
criterion  of  the  determining  motives  which  I  have  advanced. 

I  will  now  answer  the  first  objection  made  by  Guyau.^  It  is  easy 
to  overthrow  this  objection,  for,  although  all  forms  of  social  law 
must  be,  like  physical  and  biological  laws,  independent  of  the 
criterion  of  the  moral  liberty  of  the  agent  (and  that  it  should  be 
purely  dynamic  through  an  entirely  natural  action  and  reaction 
of  forces),  it  does  not  follow  (and  my  conclusion  is  in  fact  entirely 
different)  that  society  must  react  always  in  the  same  manner  and 
with  the  same  severity  against  all  kinds  of  anti-social  acts.  It 
can  be  seen,  therefore,  that  this  objection  made  by  Guyau,  and 
since  repeated  by  many  others  who  are  apparently  astonished 
that  we  can  still  speak  of  the  sociological  condition  and  deter- 
mining motives  of  delinquents,  is  based  on  an  equivocation  and 
a  confusion  of  the  moral  freedom  and  fault  of  the  delinquent  which 
are  not  accepted  by  us,  and  his  psychical  conditions  which  we  do 
not  in  any  way  exclude.  We,  therefore,  agree  on  the  legal  prin- 
ciple that  a  death  caused  simply  by  negligence  must  be  subject  to 
one  rule,  that  is  to  say,  provoke  one  reaction  different  from  that 
which  a  homicide  for  money  or  for  vengeance  will  cause. 

And  further,  in  this  special  case,  I  personally  find  an  even  more 
essential  difference  between  the  two  rules,  because  in  involuntary 
homicide,  imprisonment  which  differs  only  in  length  and  name 
from  that  which  is  inflicted  for  intentional  homicide  is  illogical 
and  useless.  And  so  we  are  entirely  in  accord  on  this  point,  that 
a  failure  resulting  merely  from  imprudence  or  ignorance  must 
be  punished  in  a  way  —  extra-legal  in  public  opinion  and  econom- 
ics, legal  in  being  imposed  by  a  judge  —  different  from  that  which 
attends  a  fraudulent  bankruptcy.  And  finally,  we  are  perfectly 
in  accord  in  recognizing  that  the  same  punishment  must  not  be 
imposed  upon  a  sneak-thief  as  upon  a  highwayman.  But  we 
must  further  consider  whether  practically  these  different  forms  or 
social  laws  have  been  preserved  in  the  form  in  which  they  have  been 
1  Guyau,  "Critique  de  I'idee  de  sanction"  R.  P.  (March,  1883). 


410  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  270 

pictured  by  the  classical  criminologists,  and  in  the  classical  works 
on  punishment.  These  reforms  in  penal  methods  and  procedure 
I  will  take  up  in  the  last  chapter  of  this  book.  In  the  meantime, 
the  elementary  idea  of  social  or  legal  responsibility,  that  gov- 
erns every  act  of  a  citizen,  is  completed  in  the  other  idea  of  the 
diflFerent  quality  and  degree  of  punishment  attached  to  this  re- 
sponsibiHty.  And  this  brings  before  us  two  fundamental  prob- 
lems, with  the  solution  of  which  I  will  leave  this  positive  theory 
of  penal  responsibility. 

A.  What  are  the  difiFerent  forms  of  social  sanction  by  which  the 
legal  responsibiUty  of  the  citizen  for  his  illegal  acts  should  be 
manifested  ? 

B.  What  wiU  be  the  criterion  which  will  indicate  in  each  special 
case  the  form  and  degree  of  social  punishment  most  appropriate? 

§  270.    Greater  Importance  of  Prevention. 

To  begin  with  the  first  of  these  problems  it  is  natural  to  point 
out  at  the  beginning  that  we  are  speaking  now  of  the  forms  of 
legal  sanction;  because  those  of  extra-legal  punishment,  such  as 
pubHc  opinion,  natural  economic  consequences,  punishments  in- 
flicted by  the  Church,  or  by  conscience,  although  very  efficacious 
aids  to  the  defense  and  preservation  of  society  because  spontaneous, 
and  tending,  some  of  them  at  least,  to  increase  constantly  in  in- 
tensity and  extent,  do  not,  properly  speaking,  enter  into  the  field 
of  juridical  science,  which  is  our  subject,  although  they  must  enter 
into  the  conclusions  of  the  practical  sociologist  whose  discoveries 
aid  the  legislature.  It  is  with  this  practical  criminal  sociology, 
which  can  be  called  as  the  Germans  call  it,  "Kriminalpolitik" 
(criminal  politics),  that  the  conclusion  of  this  book  will  deal. 
Some  of  our  critics  have  recently  thought  that  criminal  sociology, 
as  we  understand  it,  that  is,  the  study  of  crime  as  a  natural  and 
social  phenomenon,  and  not  as  a  purely  and  abstractly  juridical 
phenomenon  (and  consequently  as  criminal  law  reformed  by  the 
positive  method),  is  not  and  must  not  be  simply  the  practical 
art  of  criminal  poHce  distinct  from  the  science  of  crime  and  pun- 
ishment. It  is,  on  the  contrary,  the  basis  of  any  practical  admin- 
istrative acceptance  in  the  systematic  indication  of  the  different 
forms  of  social  reaction  against  individual  anti-juridical  acts  and 
forms  the  task  of  the  criminal  sociologist,  that  is  to  say,  the  object 
of  the  science  relating  to  the  laws  of  social  security.  Such  a  study 
must  consider  the  entire  variety  of  daily  facts,  which  shows  the 


§270]  JUSTICE  WITHOUT  FREE  WILL  411 

excellence  of  the  positive  method  of  the  new  school,  which,  in 
place  of  reasoning  on  crimes  considered  by  themselves  as  abstract 
juridical  entities,  observes  actual  facts  as  natural  phenomena 
enacted  by  individuals  who  present  special  and  different  physio- 
psychological  characters  in  a  different  physical  social  environ- 
ment. But  on  this  subject,  from  its  very  beginning,  the  positive 
criminal  school  has  been  able  to  boast  of  two  signal  successes 
which  are  long  steps  towards  a  happier  and  surer  development  of 
social  life.  For  up  to  the  present  time  the  classical  school,  be- 
cause of  its  reasoning  that  crime,  being  the  effect  of  a  will  which 
abused  its  freedom,  must  be  absolutely  prevented  or  repressed  by 
punishment  directed  against  the  will,  which  punishment,  must, 
at  the  same  time  restore  the  violated  right  and  establish  tran- 
quillity, —  up  to  the  present  time,  I  say,  the  classical  school  has 
reduced  the  function  of  social  defense  to  penal  and  repressive 
measures,  and  yet  it  admits  on  one  hand  preventive  means,  and  on 
the  other,  repressive  means,  against  insane  delinquents,  as  aids, 
however,  which  have  not  a  strictly  juridical  character.  Almost 
all  the  classical  criminologists  make  little  allusion  (if  it  occurs  to 
them  at  all)  to  the  civil  or  reparatory  means  as  instruments  of 
social  defense  against  anti-juridical  acts  of  a  criminal  character. 
They  create  an  essential  difference  between  civil  and  criminal 
law.  At  most,  they  look  upon  civil  compensation  for  damages 
consequent  upon  crime  as  entirely  accessory  through  the  fiction  of 
a  contractual  relation  almost  entirely  neglected  in  practice.  But 
the  principal  consequence  of  crime,  that  which  is  by  far  of  greatest 
interest,  and  which  alone  interests  the  public,  is  punishment.^ 
Now  this  shows  the  first  service  rendered  by  the  positive  school, 

^  Among  the  classicists,  however.  Binding,  "Die  Normen  und  ihre  t)bertre- 
tung"  (Leipsic,  1872),  I,  166,  2d  ed.  (1889),  holds  that  there  is  no  difference 
between  pecuniary  reparation  and  punishment,  although  he,  with  different  in- 
tentions and  method  than  the  positive  school,  it  is  true,  also  holds  that  there  is 
no  difference  between  a  civil  wrong  and  a  criminal  act.  See  also  Binding,  "  Grund- 
riss  zu  Vorlesungen  Uber  das  deutsche  gemeine  Strafrecht."  Since  the  Italian 
positive  school  insisted  on  the  social  function  of  reparation  of  damage  done,  this 
subject  has  been  seriously  studied  in  the  positivistic  school  by  the  "Union  inter- 
nationale  de  droit  penal,"  and  even  made  a  subject  of  debate  by  the  "Congres 
penitentiaire"  at  Paris  (1895)  and  Brussels  (1900).  In  France,  to-day,  thanks 
to  Jusserand,  an  "objective"  theory  of  civil  responsibility  has  been  begun,  which, 
relying  on  this  idea,  which  I  introduced  into  the  theory  of  penal  responsibility, 
that  responsibility  is  independent  of  fault,  confirms  the  common  reason  of  civil 
and  penal  responsibility.  See  Saleilles,  "Essai  sur  une  theorie  objective  de  la 
responsabilite"  (Paris,  1897);  Pugliese,  "Delia  responsibility  (civile),"  in  the  "Ri- 
vista  giurisprudenza"  (August,  1899);   Angiolini,  "Colpa,  risarcimento  e  pena." 


412  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  270 

which  insists  on  the  practical  necessity  i)ointed  out  by  logic  and 
the  positivist  theory  of  collecting  in  a  single  system  all  the  differ- 
ent means  of  defense,  of  which  society  can  avail  itself  against  anti- 
juridical  acts.  So  far  from  separating  in  an  almost  irrevocable 
manner  the  civil  and  the  criminal,  the  preventive  and  repressive, 
the  defensive  and  the  punitive  means,  it  coordinates  them  in  an, 
organic  whole  and  uses  aU  of  them  for  the  defense  of  society 
against  crime. 

In  reply  to  this  belief  of  the  classical  school,  according  to 
which  there  is  a  veritable  chasm  between  the  art  of  good  gov- 
ernment, that  is  to  say,  of  prevention,  and  the  science  of  penal 
administration,  I  have  answered  with  the  approval  of  other 
|)ositivists  that  prevention  and  repression  are,  on  the  other  hand, 
only  two  phases  of  one  and  the  same  function  affected  by  the  same 
organ  of  society,  with  one  and  the  same  end.  This  end  is  the  pres- 
ervation of  society;  the  problem,  the  study  of  the  most  efficacious 
and  useful  means  of  obtaining  protection  both  for  society  and  the 
individual.  Of  course,  the  criteria  are  different  for  prevention 
and  repression;  but  distinction  does  not  mean  separation.  One 
must  decide  which  of  these  two  phases  of  the  same  social  function 
is  entitled  to  the  greater  weight.  We  have  already  answered  this 
question  in  the  earUer  chapters  through  the  aid  of  psychology  and 
criminal  statistics;  but  we  have  to  admit  that  both  for  the  pre- 
vention and  repression  of  crime  criminal  sociology  must  always  be 
based  on  the  fundamental  rules  for  the  study  of  phenomena.^ 

*  This  is  the  reason  that  the  positive  school  does  not  admit  any  essential 
difference  between  crimes  and  misdemeanors,  such  as  all  classicists  make  with 
rare  exceptions.  (See,  among  others,  Filomusi  Guelfi,  "  Enciclopedia  giuridica," 
8d  ed.,  Naples,  1885.)  Both  are  anti-social  actions  against  which  a  penal 
sanction  is,  or  appears,  necessary,  and  there  is  between  crimes  and  misdemeanors 
only  a  difference  in  degree.  It  cannot  be  said  that  crime  is  an  intentional  viola- 
tion of  a  right,  while  a  misdemeanor  really  endangers  it,  and  consists  rather  in 
the  non-premeditated  violation  of  a  prohibition  intended  to  protect  rights  and 
interests;  for  there  are  crimes  without  intent  and  without  consequent  damage, 
as  there  are  misdemeanors  of  vicious  intent  and  followed  by  serious  damage. 

This  is  so  true  that  the  Italian  Penal  Code  includes  among  misdemeanors  a 
number  of  acts  which  are  really  crimes,  and  the  Austrian  Penal  Code  provides 
that  many  actions  can  be,  according  to  circumstances,  crimes,  or  misdemeanors; 
and  difficulties  can  be  found  every  day  in  practical  jurisprudence  when  a  precise 
separation  of  crimes  and  misdemeanors  is  attempted.  It  is  not  always  possible, 
for  this  line  of  demarcation  does  not  exist  in  fact.  See  Ferri,  "  La  cosidetta  volon- 
tariet^  nelle  contravenzioni,"  in  the  "Difese  penali  e  studi  di  giurisprudenza" 
(Turin,  1900),  p.  402;  Stappato,  "Dell'  elemento  soggettivo  nelle  contravenzioni" 
(Venice,  1895).  See  also  Berenni,  "La  suoiettivitA  del  reato"  (Naples,  1899) 
(extract),  which  makes  non-premeditated  crimes  misdemeanors. 


§271]  JUSTICE  WITHOUT  FREE  WILL  413 

And  we  can  go  even  further  and  say  that  this  method  of  consid- 
ering prevention  and  repression  alone  prevents  exaggerations  on 
one  side  or  the  other.  With  absolute  separation,  too  much  im- 
portance is  given  either  to  repressive  administration,  and  then 
pimishment  is  looked  upon  as  the  only  means  of  juridical  or  social 
protection,  and  the  illusion  is  reached  that  it  is  only  necessary  to 
formulate  a  penal  code  or  to  add  exceptional  penal  laws  to  it  in 
order  to  prevent  or  diminish  crime;  or  else  prevention  attracts 
too  much  attention,  and  one  sins  on  the  other  side.  That  is  to 
say,  individual  rights  (which  we,  as  well  as  the  classicists,  consider 
sacred)  are  unnecessarily  disregarded  and  all  repressive  protec- 
tion is  considered  as  absolutely  useless  and  absurd.  And  so,  at 
the  first  blush,  one  is  forced  to  agree  with  such  authorities  as 
Owen,  Girardin,  Wyrouboff,  and  Minzloff,  who  have  made  but  a 
superficial  study  of  the  new  data  of  criminal  sociology.  But  we, 
basing  our  conclusions  on  the  positive  study  of  criminal  phenom- 
ena, believe  that  prevention  and  repression  are  equally  necessary 
for  the  protection  of  society,  just  as  hygienic  prophylactics  and 
clinical  therapeutics  are  both  used  as  protection  against  ordinary 
sicknesses.  And  it  is  only  in  accordance  with  the  data  of  anthro- 
pology and  criminal  statistics  that  we  determine  upon  one  of  two 
kinds  of  defense.  Social  prevention  of  crime  has  and  must  have 
a  greater  importance  and  utility  both  for  the  individual  and 
society. 

§  271.    The  Relations  of  Criminal  and  Civil  Law. 

As  to  any  more  marked  separation  between  the  civil  means  of 
reparation  and  repressive  means,  between  civil  and  criminal  law, 
I  can  find  no  positive  reason,  because  there  is  no  essential  differ- 
ence between  civil  and  criminal  law.  They  are,  in  fact,  neither 
separate  nor  distinct  in  the  primitive  phases  of  human  evolution. 
And  because  there  is  no  distinct  line  of  demarcation  between  them, 
there  was  a  period  when  punishments  were  exclusively  civil,  that 
is  to  say,  reparative.  It  is  only  the  course  of  time  giving  social 
phenomena  great  complexity  and  development  that  has  separated 
these  two  branches.  In  the  same  way  it  has  more  recently  con- 
tradistinguished the  law  merchant,  administrative,  constitutional, 
international,  and  business  law.  But  civil  and  criminal  law  have 
always  remained  two  branches  springing  from  the  same  trunk, 
two  aspects  of  the  same  order,  two  views  of  juridical  facts  — 
one  taken  from  the  normal  or  civil  side,  and  the  other  from  the 


414  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  272 

abnormal  or  criminal  side.  The  absolute  separation  of  civil  and 
criminal  law  has  not  only  obHged  jurists  to  expend  their  energies 
in  inconclusive  theories,  but  has  resulted  in  dangerous  practical 
consequences.  For,  placing  a  chasm  between  civil  and  criminal 
penalties  has  drained  an  abundant  source  of  eflficacious  means  to 
hinder  the  repetition  of  anti- juridical  or  criminal  acts  by  delin- 
quents, and  to  prevent  the  contagion  of  bad  example  spreading 
crime  to  others.  In  fact,  according  to  the  observation  of 
Bovio,^  which  had  already  been  suggested  by  Filangieri,^ 
"We  can  see  that  in  the  societies  where  civil  remedies  are  most 
prompt,  facile,  and  just,  there  is  the  least  need  of  recourse  to 
criminal  punishment.  Of  this,  we  have  a  famous  historical  ex- 
ample in  the  unparalleled  excellence  of  civil  law  in  Rome,  and  in 
the  relatively  sUght  development  of  their  criminal  law.  On  the 
other  hand,  as  the  statistics  of  Candolle'  and  Zincone*  prove, 
when  ci\dl  justice  is  slow,  difficult,  and  expensive,  crimes  of  vio- 
lence increase  in  number.  For  these  reasons,  as  I  have  already 
said,  the  positivist  school  upholds  the  theoretical  and  practical 
necessity  of  organizing  in  one  system  all  the  instruments  adapted 
to  the  social  function  of  the  maintenance  of  order,  both  preven- 
tive and  repressive,  civil  and  penal,  which  society  can  use  with 
justice. 

§  272.    Positive  Means  of  Social  Defense. 

There  is  a  second  benefit  given  by  the  positive  school.  It  is 
the  proposal  (and  it  shows  the  means  of  using  it)  to  adopt  other 
means  of  defending  society  which  have  been  and  are  held  illegiti- 
mate by  the  classical  school  because  they  contradict  its  theoreti- 
cal principles.  And  yet  the  classical  school,  after  refusing  to 
recognize  them,  has  been  forced  to  accept  some,  such  as  asylums 
for  the  criminal  insane  and  farm  labor  for  convicts,  as  Franchi 
has  shown.^  The  new  school  as  a  reply  to  this  problem  — 
what  are  the  various  kinds  of  social  sanction  by  which  the  juri- 
dical liability  of  the  citizen  should  be  manifested?  —  has  given 

^  Bovio,  "Saggio  critico  del  diritto  penale"  (Naples,  1877),  p.  11,  §4.  For 
the  inverse  evolution  of  civil  to  penal  justice,  see  Durckheim,  "De  la  division  du 
travail  penal,"  pp.  142  et  seq. 

^  An  observation  which  I  have  recalled  at  the  end  of  §  II,  chap.  I. 

*  De  Candolle,  "Sur  la  statistique  des  delits,"  in  the  "  BibUotheque  universelle 
de  Geneve"  (1830). 

*  Zincone,  "Del  aumento  dei  reati"  (Caserta,  1872). 

*  Franchi,  "II  progetto  GioUtti  per  il  lavoro  dei  condamnati  all'  aperta  e  il 
diritto  penale,"  S.  P.  (January,  February,  1903). 


§272]  JUSTICE  WITHOUT  FREE  WILL  415 

four  different  forms  of  social  reaction  against  anti-juridical  acts, 
which  correspond  to  four  classes  of  defensive  measures. 

Abstract  reasoning,  always  going  further  and  further  from  the 
world  of  reality,  ends  not  only  by  losing  all  sense  of  reahty,  but 
also  by  creating  gratuitous  difficulties  where  none  exist.  For  ex- 
ample, where  criminal  classicism  has  lost  its  sense  of  reality,  where 
it  has  failed  to  see  other  forms  of  social  preservation  against  anti- 
juridical  acts,  beyond  the  confines  of  punishment,  positive  crimi- 
nology in  order  to  solve  the  difficulty,  apparently  impossible  of 
solution,  concerning  the  different  forms  of  defensive  social  reaction, 
only  asks  this  simple  question :  —  What  proportion  and  what  kind 
of  defense  woidd  a  prudent  man  adopt  who  wishes  in  the  continual 
buffetings  of  life  to  protect  himself  by  his  own  strength  from  dan- 
ger? There  is  no  need  of  a  genius  to  answer  this  question.  He 
would  begin  by  taking  care  not  to  arouse  against  him  the  people 
that  he  met,  and  by  suppressing  or  diminishing  as  far  as  possible 
their  temptations  to  do  harm  to  his  goods  or  his  person.  Then  if 
some  dishonest  or  malicious  individual  attempted  to  commit  an 
offense  against  either  his  goods  or  his  person,  he  would  try,  if  there 
were  time,  to  make  him  give  up  his  aggressive  or  dangerous  act, 
forcing  him  to  follow  a  regular  course  of  action.  If  the  act  was 
completed,  he  would  destroy,  if  it  was  possible,  all  its  legal  conse- 
quences. If  that  was  not  possible,  he  would  force  the  aggressor  to 
repay  either  in  kind  or  in  the  universal  equivalent,  "money,"  the 
damages  caused.  If  he  saw  that  this  reparation  would  not  be  a 
sufficient  guarantee  against  a  repetition  of  the  attack,  either  by  the 
first  aggressor  or  by  those  around  him  who  would  be  tempted  to 
imitate  him,  he  would  confine  the  aggressor  if  he  could,  legally  or 
actually,  by  taking  away  from  him,  for  example,  the  power  of 
representing  him  in  his  civil  or  commercial  affairs,  or  by  not  call- 
ing him  in  as  doctor  or  engineer  in  case  of  need.  In  graver  cases 
he  would  see  that  he  was  imprisoned  for  a  longer  or  shorter  time, 
according  to  circumstances.  And  lastly,  if  either  his  past  experi- 
ence of  other  men  of  the  same  type,  or  more  personal  experience 
that  he  had  had  with  the  offender  himself,  convinced  him  that  a 
"good  lesson"  would  not  suffice  to  deprive  him  of  the  criminal 
desire,  and  that  he  would  be,  without  other  means  of  possible 
defense,  continually  exposed  to  his  attacks,  then  he  would  em- 
ploy severe  remedies.  If  the  absolute  necessity  of  preservation 
from  an  unjust  and  imminent  attack  imperiously  demanded  it, 
he  would  not  hesitate  to  put  an  incorrigible  and  dangerous  ag- 


416  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  273 

gressor  to  death;  or  if  he  could  bring  about  the  result  in  any  other 
way,  for  it  is  always  repugnant  to  the  sentiments  of  humanity  to 
kill  a  man  even  in  the  most  pressing  need,  he  would  so  act  as  to 
free  himself  definitely  by  placing  him  in  some  distant  place  where 
he  could  lead  a  new  life  without  danger  to  the  victim. 

This  simple  and  practical  reasoning  any  one  of  us  can  hear  ut- 
tered by  any  man  of  sense,  even  if  he  is  ignorant  of  the  names  of 
Cujas  and  Carmignani;  and  this  is  the  practical  reasoning  that  the 
positive  criminologist  attributes  to  society,  considering  it  as  a  Uving 
being  who  not  only  in  the  exercise  of  the  function  of  punishment, 
but  in  every  other  order  of  life,  obeys  exactly  the  same  laws  and 
encounters  exactly  the  same  grave  and  complex  necessities  of 
existence,  and  follows  the  same  fundamental  lines  as  any  individ- 
ual follows  in  his  own  life.  But,  as  is  natural,  the  measures  taken 
by  society  demand  an  infinitely  more  compUcated  mechanism; 
yet  this  argument  does  not  in  the  slightest  degree  destroy  the  fun- 
damental identity  of  principles  and  purposes.  The  complica- 
tion is  so  great  that  (to  give  but  a  single  example)  the  intellectual 
operation,  which  is  an  almost  instantaneous  reasoning  of  the  in- 
dividual attacked,  that  is,  a  judgment  formed  from  sensations 
present  or  hardly  past,  becomes,  on  the  other  hand,  in  society  a 
tortuous  course  of  criminal  procedure,  which,  however,  contains  in 
its  structure  and  in  its  final  results  only  the  simple  judgment  by 
-which  a  man  foresees  with  certainty  an  act  dangerous  for  himself 
on  the  part  of  another,  and  recognizes  immediately  the  necessity 
of  avoiding  its  consequences,  or,  at  least,  of  preventing  its  repe- 
tition. And  this  is  precisely,  apart  from  the  long  road  which  we 
must  travel  in  order  to  follow  the  idea  which  we  have  indicated, 
the  system  of  defensive  measures  which  positi\asm  beUeves  to 
contain  the  different  forms  of  social  reaction  against  anti-social 
acts. 

§273.    Positive  Means  of  Social  Defense:  Preventive  Means. 

Preventive  means  considered  abstractly  cannot,  of  course,  be 
a  legal  form  or  reaction,  because  they  are  anterior  to  the  anti- 
social facts  which  they  aim  to  prevent.  But,  on  the  other  hand, 
if  preventive  means  in  a  final  analysis  consist  in  a  series  of  restric- 
tions on  individual  or  social  activity,  it  is  easy  to  recognize  their 
legal  character,  applied,  it  is  true,  in  the  most  indirect  and  least 
consequential  form,  as  the  hygienic  rules  to  which  they  corres- 
pond do  not  seem  in  comparison  to  therapeutics  or  surgery  to 


§274]  JUSTICE  WITHOUT  FREE  WILL  417 

present  the  character  of  real  remedies.  But  since  in  the  hygiene 
of  the  individual,  as  in  that  of  society,  both  these  sorts  of  rules 
are  in  fact  so  many  restrictions,  so  they  are  in  fact  remedial  and 
have  but  one  end,  —  certainty  of  protection.  It  is  precisely 
because  these  remedies  are  preventive,  that  is  to  say,  because 
they  impose  a  restriction  before  the  appearance  or  development 
of  the  ill,  and  although  at  the  present  time  included  in  the  hygiene 
of  the  individual  as  well  as  in  that  of  society,  they  are  neglected 
either  because  he  who  must  take  the  preventive  measures  yields 
to  the  temptation  of  the  course  of  least  resistance  and  awaits  the 
ill  before  putting  any  obstacle  in  its  way,  or  because  individuals 
themselves,  seeing  that  the  little  forethought  which  they  usually 
take  is  useless,  find  complete  privation  too  hard  when  the  ill  seems 
distant.  They  can  be  divided,  as  EUero  said,^  into  two  main 
categories.  First,  measures  of  direct  and  present  police.  These 
are  the  least  useful  and  least  efficacious,  because  they  attempt  to 
hinder  the  crime  only  when  the  causes  of  it  have  developed  (and 
they  have  a  repressive  character).  However,  these  (for  the  rea- 
son that  we  have  given)  are  the  ones  which  have  up  to  the  present 
time  been  employed  in  science  and  legislation.  Second,  measures 
of  indirect  and  distant  police  which  tend  to  suppress  or  render 
less  harmful  the  causes  of  crime,  and  which  under  this  head  in  the 
measure  of  their  efficiency  are  truly  and  properly  penal  substi- 
tutes, as  I  have  called  them,  provided  that  "once  the  crime  is 
suppressed  punishment  is  suppressed  also."^  This  subject  I  have 
taken  up  at  length  in  a  prior  chapter. 

§  274.    Positive  Means  of  Social  Defense :  Reparative  Measures. 

The  reparative  form  of  social  reaction  or  regulation,  like  the 
others  which  remain  to  be  dealt  with,  differs  from  the  first  and 
larger  category  of  preventive  means,  because  it  can  be  used  only 
when  the  anti-juridical  fact,  the  injury,  or  "unrecht,"  like  civil 
damage,  tort,  or  crime,  has  already  been  effected.  Consequently, 
this  form  of  rule,  like  those  which  are  to  follow,  has  a  much  more 
restricted  power,  and  one  which  is  constantly  being  restricted  as 
one  advances  from  the  first  subdivision  of  reparatory  means  to  the 
last  or  eliminatory  form  of  social  regulation.    The  reparative  means 

*  EUero,  "Delia  prevenzione  del  crimini,"  in   the  "Opuscoli    criminali"  (Bo- 
logna, 1874). 

*  Turati,  "Sulle  critiche  alia  nuova  scuola  anthropologica  criminale,"  in   the 
"Arch,  di  psich."  II,  3. 


418  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  274 

can  be  divided  into  three  distinct  varieties,  —  the  suppression  of 
the  anti- juridical  state,  the  nullity  of  the  effects  of  the  anti- 
juridical  acts,  and  the  reparation  of  damages  caused  by  such 
acts.  When  an  anti-jmidical  act  has  begun,  the  first  most 
natural  and  most  efficacious  remedy  is  to  prevent  its  accomplish- 
ment and  to  suppress  its  continued  existence.  If  this  is  not  pos- 
sible, the  only  thing  remaining  to  be  done  is  to  deprive  the  effects 
of  this  act  of  all  legal  value,  if  the  effects  have  not  yet  been  realized. 
Or,  lastly,  to  obUge  the  agent  or  his  estate  to  repair  the  damages 
caused. 

These  reparative  means  may  be  used  either  as  principal  meas- 
ures or  as  accessory  rules,  according  to  the  physio-psychological 
character  and  economic  responsibiUty  of  the  agent.  All  anti- 
juridical  acts,  even  if  premeditated  or  caused  simply  by  negUgence, 
are  not  actually  criminal.  Social  reaction  takes  place  against 
every  act  of  an  anti-social  character;  but  we  must  further  re- 
member that  there  can  be  many  degrees  of  anti-sociabihty,  or,  to 
be  more  acciu-ate,  we  can  say  that  they  are  acts  simply  anti- 
social because  they  are  harmful  to  the  interests  of  a  citizen  taken 
by  himself  "uti  singuh"  or  collectively,  and  extra-legal  rules 
which  I  have  already  mentioned  are  sufficient  in  such  cases. 

There  are  acts  really  anti- juridical  because  they  violate  the  rights 
of  citizens  and  then  legal  punishments  are  necessary,^  which, 
however,  are  confined  to  reparative  means  or  civil  punishment 
unless  the  anti- juridical  act  takes  on  a  criminal  character,  and 
either  in  its  evil  intent  or  by  its  determining  psycho-pathological 
conditions  proving  that  the  agent  is  eminently  dangerous.  Or,  in 
the  third  case,  such  act  can  have  a  truly  criminal  character  and 
then  further  punishment  is  necessary,  more  properly  called  penal 
or  repressive;  and  in  some  cases  the  ultimate  punishments  which 
are  eliminative.  The  conclusion  is,  therefore,  that  every  anti- 
social act  entails  a  form  of  punishment  in  proportion  to  its  char- 
acter and  the  character  of  the  agent.  The  positive  school  is  not 
forced  to  separate  breaches  of  ordinances  from  crimes  properly  so 

^  To  tell  the  truth,  the  distinction  between  interest  and  right  is  very  relative; 
it  is  as  De  Faleo,  "Discorso  del  3  Gennajo,  1884,"  p.  iS,  said,  "only  a  vague 
difference  easily  overcome."  Here  we  are  dealing  with  well-marked  cases,  where 
there  is  a  profound  difference  between  simple  interest  and  true  right,  properly 
so  called,  the  latter  being  based  on  a  legal  sanction,  the  former  not,  but  this,  of 
course,  does  not  prevent  the  distinction,  being  in  intermediate  cases,  very  relative. 
See  also  Porro,  "Gli  obbUgate  legali  e  le  loro  sanzioni,"  in  the  "Monitore  dei 
Tribunali"  (1893). 


§§275,276]     JUSTICE  WITHOUT  FREE  WILL  419 

called,  or  the  civil  from  the  criminal  courts.  This  is  the  only 
rational  way  to  withdraw  from  strictly  repressive  punishment 
certain  acts  which,  although  anti-social  and  anti-juridical,  are  not 
truly  criminal,  such  as  unpremeditated  wrongs  and  certain  others 
which,  although  premeditated,  have  a  special  character,  such  as 
for  example  adultery.  To  such  acts  we  hold  that  reparatory 
means  must  exclude  criminal  means,  or  at  least  a  great  preference 
must  be  given  to  the  former.  Thus,  while  the  classical  school 
eradicates  all  moral,  and  consequently,  all  social  responsibility  in 
acts  where  there  is  but  a  sUght  malfeasance  (although  some  crimi- 
nologists except  homicide,  and  Carrara,  maintaining  irrespon- 
sibihty  in  this  case,  still  upholds  the  necessity  of  civil  reparation), 
we  on  the  contrary  extend  social  reparation  as  far  as  possible  in 
those  cases  anti- juridical,  but  not  criminal  where  reparation  for 
harm  done  is  available. 

§276.     Positive  Means  of  Social  Defense:  Repressive  Means. 

These  are  some  of  the  temporary  punishments  admitted  to-day 
by  penal  codes  which  should  be  preserved.  Examples  of  them 
are  imprisonment,  farming  colonies  for  adults  and  minors,  enforced 
rustication,  fines  payable  by  work,  and  suspension  from  trade  or 
profession.  They  should  always  be  temporary,  and,  as  a  general 
rule,  for  an  indefinite  term.  They  should  be  employed  only  for 
slight  malfeasances  in  cases  of  delinquents  who  are  not  dangerous, 
and  who  can  probably  be  thus  prevented  from  becoming  recidi- 
vists, and  only  in  cases  where  their  acts  and  character  do  not 
constitute  a  great  danger  for  society. 

§  276.    Positive  Means  of  Social  Defense :  Eliminative  Means. 

Eliminative  means  tend  to  prevent  recidividity,  and  should  be 
employed  in  cases  of  atavistic  criminality  against  the  most  crimi- 
nal acts,  which  are  dangerous  in  the  extreme,  either  by  their  grav- 
ity, such  as  homicide,  rape,  and  arson;  or  by  the  character  of  the 
agents,  born,  insane,  or  habitual  criminals.  These  means  or 
forms  of  punishment  have  for  their  objective  point  the  purging 
of  the  social  body  of  non-assimilable  elements  which  constitute  a 
continuous  danger.  They  differ  according  to  the  different  physio- 
psychological  character  of  the  delinquents.  They  are,  aside  from 
capital  punishment,  asylums  and  farming  colonies  for  the  crimi- 
nal insane. 


420  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  277 

§277.    Positive  Means  of  Social  Defense:  Summary. 

Such  are  the  different  forms  of  punishment.  I  have  already 
from  a  practical  point  of  view  dealt  with  the  category  of  preven- 
tive means  in  the  preceding  chapter  on  the  subject  of  the  equiva- 
lents of  punishment.  I  will  take  up  the  practical  organization  of 
the  other  forms  in  the  last  chapter.  The  brief  outline  just 
given,  however,  will  serve  to  show  that  science  must  control  the 
preventive  or  preservative  social  functions  as  well  as  the  punitive. 
There  is  a  series  of  steps  in  the  reactions  from  the  first  measures 
of  social  hygiene  direct  and  indirect  to  the  last  and  most  severe, 
which  is  the  perpetual  elimination  of  the  individual  whose  intel- 
lectual and  moral  premeditated  wrongs  absolutely  and  irremedi- 
ably unfit  him  for  social  fife.  To  return  to  our  comparison  with 
biological  medicine.  In  sociological  medicine,  the  great  classes 
of  hygienic  measures  (preventive  means),  therapeutic  remedies 
(reparative  and  repressive  means),  and  surgical  operations  (elimi- 
native  means)  form  the  arsenal  which  enables  society  to  face  the 
permanent  necessity  of  its  own  preservation. 


CHAPTER  VII 

THE   CONDITIONS   OF   CRIMINALITY 

The  act,  the  agent,  and  the  society.  The  right  violated.  The  determining 
motive.  The  anthropological  category  of  the  delinquent.  Practical  ex- 
amples. Attempts.  Complicity.  Classical  intricacy  and  positivistic 
justice. 

§  278.    The  Criteria  to  Determine  the  Form  of  Punishment  in  Any  Case. 

MouTON  very  wisely  says:  "Even  after  having  answered  the 
primary  question  of  responsibility  according  to  the  theories  of  the 
positivist  school,  i.  e.,  by  denying  all  moral  responsibility  or  cul- 
pability, the  question  of  the  right  to  punish  and  its  social  appli- 
cations remains  undetermined."^  Up  to  this  point  we  have 
answered  the  first  of  the  two  final  problems  which  develop  and 
complete  the  positive  idea  of  responsibility.  We  note  the  differ- 
ent forms  of  social  punishment  which  must  enforce  upon  the 
citizen  his  responsibility  for  anti- juridical  acts,  but  the  second 
remains,  —  the  criterion  which  will  show  in  each  special  case  the 
most  appropriate  form  and  degree  of  social  punishment.  As  can 
be  easily  seen  this  is  the  technico- juridical  part  of  criminal  soci- 
ology. It  is  this  part  that  permits  us,  after  obtaining  a  general 
outline  of  the  criteria,  to  apply  them  with  variety  and  accuracy 
to  the  many  necessities  of  daily  life.  It  is  this  new  part  which 
must  be  opposed  to  the  confused  and  pompous  display  of  "a 
priori"  principles,  by  which  the  classical  science  has  in  the  pres- 
ent day  governed  the  practical  exercise  of  penal  law,  with  a  luxu- 
riance of  constantly  more  subtle  and  refined  rules  and  regulations, 
which  the  legislators  have  in  vain  tried  to  formulate  into  codes, 
while  the  judges  have  worked  to  exhaustion  to  adapt  them  to  the 
living  realities  of  life. 

We  shall  not  be  able  in  the  narrow  limits  of  this  chapter  to  de- 
velop the  new  positive  theories  in  detail,  for  two  reasons :  because 
we  must  deal  with  them  again  in  the  following  chapter  from  the 
point  of  view  of  practical  reform,  and  because  this  more  techni- 
cally legal  part  of  our  work  has  been  already  splendidly  dealt 

1  Mouton,  "Le  devoir  de  pumr"  (Paris,  1827),  p.  12. 
421 


422  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  278 

with  by  other  positivists.  For  the  pKJsitive  school  from  its 
beginning,  as  far  as  the  rules  by  which  social  defense  must  be 
measured,  has  been  based  on  a  work  of  Garofalo,  which,  though 
it  may  not  contain  the  actual  problem  in  its  entirety,  still  contains 
at  least  the  statement  of  a  positive  rule,  that  of  the  temibility 
(or  more  or  less  dangerous  character  of  the  delinquent)  which 
Garofalo  emphasizes  to  such  an  extent  that  he  hardly  allows  the 
dawn  of  the  new  school  to  be  seen  in  his  works.  But  it  was  a  sin- 
gularly happy  intuition,  since  confirmed  by  every  new  discovery 
and  become  the  keystone  of  the  new  scientific  arch.  Garofalo, 
adding  in  a  later  work  ^  the  test  of  the  adaptabihty  of  the  delin- 
quent to  his  social  surroundings  to  the  test  of  temibility  which  he 
at  first  advanced,  enunciated  this  law,  that  "the  manner  of  pun- 
ishment must  be  determined  by  the  possibility  of  the  adaptation 
of  the  ofiFender.  In  other  words,  by  an  examination  of  the  condi- 
tions of  life  in  which  there  is  a  presiunption  that  he  will  cease  to 
be  dangerous."  He  further  developed  a  complete  system  of  pun- 
ishment which  seems  to  me  to  need  completion,  however,  espe- 
cially in  its  directive  criteria.  We  must  hasten  to  add,  however, 
that  the  tests  of  the  temibility  and  adaptabihty  of  a  delinquent, 
even  if  constituting  a  positive  and  infrangible  rtde,  are  not  suffi- 
cient "per  se"  to  solve  the  problem.  They  fail  in  their  total  dis- 
regard of  preventive  means  and  in  another  serious  omission. 

Two  things  must  be  sought.  First,  —  What  is  the  form  of 
social  punishment,  that  is  to  say,  what  are  the  defensive  means, 
which  best  fit  the  different  cases?  Second,  —  To  what  degree 
must  the  defensive  means  determined  upon  be  inflicted  for  each 
agent  of  an  anti- juridical  or  criminal  act  already  committed.''  The 
criteria  of  temibihty  and  adaptabihty  answer  the  second  of  these 
requirements  only  in  a  most  general  way.  As  to  the  first,  it  is  the 
capital  conclusion  of  criminal  anthropology  and  sociology  that 
the  delinquent,  in  place  of  being  an  algebraic  type,  in  place  of  being 
a  man  hke  his  fellows,  as  classical  science  and  legislation  picture 
him,  presents  on  the  other  hand  in  his  organic  and  psychic  char- 
acteristics many  anthropological  varieties  with  different  poten- 
tiaUties  in  anti-social  activity.  On  this  conclusion,  let  us  repeat, 
sociology  and  legislation  base  their  rule  of  fitting  the  different 

1  Garofalo,  "Di  un  criterio  positive  delia  punalitA"  (Naples,  1880).  Its  idea 
was  contained  in  an  article  in  "Studi  recenti  sulla  penality,"  published  since  Octo- 
ber, 1878,  in  the  "Giomale  Napolitano  di  filosofia  e  lettere,"  also  in  the  second 
edition  of  "Uomo  delinquente"  by  Lombroso,  and  "Teorica  del  imputabilitll " 
by  Ferri. 


§279]  THE  CONDITIONS  OF  CRIMINALITY  423 

means  of  social  defense  to  the  different  categories  of  delinquents. 
For  example:  Eliminative  means  are  employed  for  the  most 
dangerous  born-criminals  and  for  the  criminal  insane  who  form  a 
permanent  danger  to  society.  Temporary  repressive  and  repa- 
rative means  are  used  for  occasional  deUnquents  or  delinquents 
by  passion.  The  second  requirement  relates  to  the  degree  of 
juridical  responsibility  in  each  delinquent  and  for  each  crime. 
On  this  point,  I  believe  that  the  criterion  of  the  temibility  and  the 
adaptability  of  the  delinquent  must  be  apphed  to  particular  cases 
with  due  regard  to  two  positive  and  complementary  rules;  of  the 
greater  or  lesser  anti-social  quality  of  the  act,  and  of  the  greater 
or  lesser  anti-social  quality  of  the  agent.  To  quote  Blanche- 
manche,  "The  criminal  act  must  not  be  counted  as  one  of  the 
means  by  which  the  anomaly  of  the  delinquent  can  be  deter- 
mined, but  the  extension  of  the  repression  must  be  measured  by 
it."  ^  The  first  of  these  rules,  which  was  pointed  out  by  Garo- 
falo,  results  from  two  elements.  The  first  is  the  right  infringed, 
upon  which  the  classical  school  formerly  based  this  classification 
of  crimes,  with  exclusive  absolutism,  and  which  we  accept,  objecti- 
fying and  completing  it,  however,  by  the  sum  of  our  positive 
data.  The  second  element  is  the  determinative  motives  of  the 
act,  which  I  believe  forms  one  of  the  essential  parts  of  the  positiv- 
ist  theory  of  juridical  responsibility. 

§  279.    Determinative  Motives  of  Action. 

I  have  already  fully  dealt  with  one  of  these  fundamental  norms, 
that  is,  classification  of  crimes,  and  I  need  therefore  only  add  a 

^  Blanchemanche,  "Des  principes  de  la  responsabilit6  penale,"  in  the  "Palais" 
(Brussels,  1889),  p.  216;  Carnevale,  "L'arbitrio  del  giudice  nell'  applicazione  della 
pena,"  in  the  "Rivista  penitentiaria"  (August,  1898),  says  that  to  consider  crime 
as  a  symptom  to  judge  the  delinquent  and  not  as  the  only  object  of  a  penal  judg- 
ment, is  to  punish  a  man  not  for  what  he  has  done  but  for  what  he  is  capable  of 
doing,  and  he  is  shocked  by  this  result  as  if  it  did  not  happen  every  day  in  criminal 
courts. 

Our  only  aim  is  to  render  this  criterion  of  the  offensive  power  of  the  delin- 
quent more  systematic,  just  as  in  insanity  the  patient  is  treated  not  only  with  a 
view  to  past  and  present  insanity,  but  also  with  a  view  to  possible  relapses. 

Furthermore,  all  the  critical  ingenuity  of  Carnevale  is  reducible  to  saying 
that  the  judge  will  be  able  to  consider  the  anthropological  criterion  (the  offensive 
power  of  the  delinquent),  but  still  with  an  eclectic  reserve  and  expression. 

To  the  same  effect  Vax:caro,  "Psicologia  e  procedure  penale,"  in  the  "  Antologia 
giuridica"  (August,  1896).  This  is  a  thesis  analogous  to  that  of  the  writers  who 
hold  that  criminal  anthropology  can  be  spiritualistic,  as  De  Baets,  A.  C.  A.  C. 
(Geneva,  1897),  and  Andrade,  " Antropologia  criminal  spiritualista"  (Madrid, 
1899),  have  done. 


424  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  280 

few  words  on  the  subject  of  the  determinative  motives  of  action. 
The  only  single  positive  idea  that  I  have  advanced  in  the  second 
part  of  my  book  is  "  sulla  teoria  dell'  imputabilita  e  la  negazione 
del  Ubero  arbitrio."  For  all  volitive  deUberation,  that  is,  all  hu- 
man action,  is  only  the  necessary  result  of  motives  which  at  a 
given  moment  are  present  in  the  consciousness  of  the  individual 
and  which  influence  it.  It  is  clear  that  the  character  and  value  of 
all  human  acts  are  shown  with  precision  by  the  motives  which 
determine  them. 

This  is  shown  by  daily  experience,  for  we  judge  two  acts  differ- 
ently if  we  know  that  the  motives  which  prompted  them  are  dif- 
ferent. But  the  innovation  which  I  have  introduced  on  the 
theory  of  determinative  motives  consists,  above  all,  in  this,  that 
it  is  a  substitution  of  a  quaUtative  criterion  of  the  anti-sociaUty 
or  anti-juridicity  of  determinative  motives  of  action,  or  of  their  so- 
ciaUty  or  juridicity  in  place  of  the  quantitative  criterion  to  which 
the  classical  school  has  always  held  in  its  study  of  the  relations 
between  emotions  (in  which  I  include  passions  more  or  less  vehe- 
ment) and  crime.  ^  Social  defensive  reaction  is  advanced  against 
any  act  to  the  degree  that  this  act  (as  we  have  seen  in  considering 
natural  crimes)  is  an  attack  on  social  conditions,  that  is  to  say, 
to  the  extent  that  it  is  anti-social. 

But  the  anti-sociaUty  of  an  act  does  not  consist  in  its  exterior 
materiality,  but  in  the  sentiment  which  has  inspired  and  the  mo- 
tive which  has  determined  it.  The  criterion,  therefore,  to  fit  a 
special  form  of  punishment  to  each  case  Hes  in  the  social  or  anti- 
social quality  of  determinative  motives,  just  as  the  fundamental 
criterion  to  distinguish  atavistic  from  evolutive  criminality  lies  in 
the  quality  of  such  motives. 

§  280.    Criticisms  of  Determinative  Motives. 

Certain  criticisms  of  the  criterion  of  determinative  motives, 
however,  have  been  made,  and  we  must  answer  them  clearly  and 
precisely.  It  has  been  claimed  that  the  distinction  between 
social  and  anti-social,  legitimate  and  illegitimate,  moral  and  im- 
moral, juridical  and  anti- juridical  motives  is  too  vague  to  be 
taken  as  a  method  of  judging  human  action. 

^  So,  for  example,  even  to-day.  Van  Burt,  in  "Questioni  d'imputabilitA "  in 
the  "Rivista  penale"  (April,  1898),  p.  338,  repeats  against  this  theory  the  quanti- 
tative objection  that  "the  slightest  motive  can  be  very  serious,  from  the  moment 
that  it  becomes  a  serious  fact,"  without  seeing  my  qualitative  distinction  of  motives. 


§280]  THE  CONDITIONS  OF  CRIMINALITY  425 

Magri/  accepting  the  criterion  of  motives,  and  replying  to  this 
criticism,  says  that  anti- juridical  motives  are  those  "which  tend  to 
hinder  or  deny  the  affirmation  of  social  unities."  But  it  is  more 
exact  and  complete  to  say  that  anti-social  motives  are  those  which 
are  contrary  to  the  conditions  of  social  existence  at  a  given  his- 
torical moment  for  a  given  collective  group.  This  definition  shows 
that  a  motive  which  is  anti-social  in  civilization  would  not  be 
anti-social  in  a  savage  tribe.  For  example,  the  killing  of  relations 
because  of  their  old  age,  the  killing  of  a  child  because  it  happens 
to  be  the  third  we  consider  murders;  but,  on  the  contrary,  they 
are  social  duties  in  the  Island  of  Sumatra  and  in  Austraha,  where 
the  scarcity  of  the  means  of  subsistence  imposes,  because  of  the 
different  conditions  of  social  existence,  entirely  different  rules  of 
morality  and  law.^ 

A  graver  criticism  has  been  formulated  by  Fioretti,  who 
advances  the  impossibility  of  considering  conscious  motives  of 
action  as  an  absolute  criterion  of  imputabihty.'  But  these 
objections,  although  exact  in  themselves  as  sociological  ob- 
servations, are,  however,  of  no  avail  against  the  criterion  of 
determinative  motives,  because,  in  the  first  place,  he  has  refer- 
ence to  habitual  and  daily  acts  which  we  effect  almost  automati- 
cally, without  conscious  motive.  He  may  be  right  as  to  such 
indifferent  acts,  but  the  deliberation  and  execution  of  a  crime, 
no  matter  how  petty  it  may  be,  cannot  be  considered,  even  in 
the  case  of  an  habitual  drunkard,  as  an  act  without  motive  in 
the  sense  that  it  is  executed  without  thought  of  the  reasons  which 
determine  it;  for  in  the  greater  number  of  cases,  he  who  commits 
it  will  expend  much  thought  if  only  to  complete  his  precautions 
against  discovery.  A  crime  can  be  committed  imconsciously 
only  by  an  insane  delinquent,  and  his  is  the  single  case  where  the 
criterion  of  motives  is  not  applicable. 

On  the  other  hand,  even  if  there  can  be  crimes,  apart  from 
the  habitual  acts  of  every  day,  committed  without    conscious 

^  Magri,  "Nuova  teorica  generale  della  criminalitA"  (Pisa,  1891),  p.  288. 

*  Thus  it  is  possible  to  understand  how  the  different  phrases,  social  or  anti- 
social, legitimate  or  illegitimate,  moral  or  immoral,  perverse  or  not  perverse, 
dishonorable  or  not  dishonorable,  ignoble  or  not  ignoble,  juridical  or  anti-juridical 
motives,  by  representing  different  more  or  less  general  points  of  view  according 
to  which  the  motives  are  thus  qualified,  are  nevertheless  all  included  in  conformity 
or  in  opposition  to  the  conditions  of  social  existence  (either  for  individuals  or  for 
society)  such  as  is  generally  imderstood  in  each  age  and  place. 

8  A.  P.  (1886),  VII,  234. 


426  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  281 

motives,  this  fact  is  not  sufficient  to  destroy  the  value  of  the 
sociological  criterion  of  social  punishment.  For,  even  then, 
when  the  contrary  is  not  proven,  the  crime  can  be  con- 
sidered as  determined  by  the  motives  which  ordinarily  ac- 
company it,  judged  by  common  experience  or  determined  by 
the  character  of  the  agent  which  is  the  other  criterion 
inseparable  from  that  of  the  motive.  The  most  numerous 
criticisms  of  the  criterion  of  determinative  motives  are  those 
formulated  by  Dorado  Montero,'^  in  his  excellent  and  complete 
essay  on  "Antropologia  criminale  in  Itaha." 

These  criticisms,  however,  are  based  on  an  incomplete  or 
equivocal  appreciation  of  the  principle  of  determinative  motives; 
for,  in  the  first  place.  Dorado  Montero,  like  Fioretti  before  him, 
takes  these  motives  to  be  intentional;  that  is  to  say,  to  consist  in 
intellectual  elements  of  deliberation,  but  he  forgets  that  in  soci- 
ology motives  include  all  the  psychic  conditions  affecting  an  agent 
at  a  given  moment.  Consequently,  motives  connote,  as  well  as 
intention,  the  sentiments  which,  as  I  have  said  often,  conscious 
or  unconscious,  are  the  fundamental  determinatives  of  human  ac- 
tion, and  can  always  be  judged  by  the  circumstances  surrounding 
the  act  and  the  characteristics  of  the  agent  of  which  they  are  the 
manifestation  and  the  most  direct  and  profound  effect.  A  second 
equivocation  lies  in  disregarding  the  fact  that  the  criterion  of 
determinative  motives  is  not  an  abstract  and  isolated  formula, 
but,  on  the  contrary,  is  always  applied  in  relation  to  and  con- 
jointly with  the  character  of  the  delinquent;  in  other  words,  at 
the  same  time  with  the  criterion  of  the  anthropological  category 
to  which  the  delinquent  belongs,  fixed  by  the  act  in  question  and 
his  prior  acts.  For  these  acts  furnish  all  the  means  of  physio- 
psychological  diagnosis  which  science  has  been  employing  in  the 
study  of  insane  delinquents,  and  which  should  be  employed  for  all 
crimes  and  all  delinquents  in  a  penal  procedure  governed  by  posi- 
tive criteria. 

§  281.    Determinative  Motives  as  Applied  to  Insane  Delinquents. 

As  the  criterion  of  motives  cannot  be  applied  as  a  basis  of 
responsibility  or  irresponsibihty  in  the  acts  of  insane  delinquents, 
but  can  only  be  used  as  a  criterion  of  fitting  the  form  of  social 
reaction  to  an  anti-social  act,  it  is  clear  that  if  a  murderer,  burglar, 
or  incendiary  is  affected  by  a  clinical  and  ordinary  form  of  in- 
1  Dorato  Montero,  "La  antropologia  criminal  in  Italia,"  pp.  32  et  aeq. 


§  282]  THE  CONDITIONS  OF  CRIMINALITY  427 

sanity,  the  psychological  diagnosis  from  a  point  of  view  of  social 
defense  is  complete  and  one  has  no  need  of  other  criteria.  In 
certain  cases,  however,  the  determinative  motives  can  be  used  as 
symptoms  to  aid  in  the  diagnosis  of  the  special  form  of  mental 
illusion,  when,  for  example,  they  depend  upon  an  hallucination 
or  a  fixed  idea;  and  it  was  with  this  in  mind  that  I  considered 
"the  deliberative  moment  in  cases  of  insane  homicide."  For  if 
an  insane  man  causes  some  one's  death  in  the  insane  beUef  that 
he  is  defending  himself  (as  happens  in  paranoia  or  the  delirium  of 
persecution),  this  fact  has  no  appreciable  importance  in  relation 
to  the  defense  of  society  in  comparison  to  the  proven  insanity, 
which  makes  the  individual  unsuited  to  social  life  and  dangerous 
in  the  highest  degree. 

A  difficulty,  however,  can  be  present  in  the  very  exceptional 
case  of  an  insane  man  who  has  really  acted  in  self-defense. 
Then,  if  the  determinative  motive  can  influence  the  criminal 
judge,  the  whole  difference  would  be  in  the  imprisonment  of  the 
defendant  in  an  insane  asylum  or  an  asylum  for  the  criminal 
insane,  since  the  previous  insanity  will  necessitate  the  imprison- 
ment. But  this  exceptional  case  is  not  sufficient  to  destroy  the 
positive  importance  of  the  quality  of  social  and  anti-social  mo- 
tives as  a  criterion  applicable  to  the  fitting  of  a  social  reaction 
to  an  individual  act,  a  criterion  which,  finally,  is  the  only  true 
and  positive  reason  for  impunity  in  three  cases  of  legal  justifica- 
tion —  obedience  of  a  command,  self-defense  and  duress. 

§  282.    Justification  as  a  Defense. 

As  is  well  known,  classical  criminologists  in  the  case  of  justi- 
fication, after  having  advanced  many  formulae  in  order  to  jus- 
tify impunity,  such  as  conflict  of  duties,  overpowering  of  will, 
or  emotional  insanity,  have  finally  chosen,  as  is  their  habit,  the 
defense  of  failure  of  free  will.  Carrara,  however,  we  must  ex- 
cept, because  he,  in  a  special  monograph,  has  given  the  true 
reason  for  the  "Limits  of  the  special  right  of  punishment."  But 
this  failure  of  free  will  is  only  an  untenable  expedient,  because 
there  is  no  psychological  impossibility  preventing  a  man  feloni- 
ously attacked  or  in  some  state  of  necessity,  from  preferring  to 
renounce  his  own  right  rather  than  infringe,  even  justly,  the 
right  of  another.  And  it  is  an  untenable  expedient  for  another 
reason;  because  it  cannot  be  explained  how  moral  freedom  is  over- 
come by  fear  of  an  unjust  assault,  and  not  to  give  another  example, 


428  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  284 

by  the  fury  of  vengeance.  And  it  is  also  unsustainable  because  self- 
defense  is  not  an  excuse,  but  a  justification,  and  represents  nothing 
more  nor  less  than  the  exercise  of  a  right.  Now  the  positive  school 
considers  it  with  regard  to  the  criterion  of  juridical  and  social  mo- 
tives by  which  the  act  is  determined.^  There  is  no  difference 
between  the  motives  of  him  who  executes  a  legal  sentence  or 
obeys  the  valid  order  of  a  superior,  and  of  him  who  destroys  the 
right  of  another  in  the  case  of  necessity;  that  is  to  say,  in  defense 
of  himself  or  some  third  party  which  he  cannot  effect  otherwise. 

§  283.    Difficult  of  Proving  the  Detenninative  Motives  as  a  Criticism  of 
Them  as  a  Criterion. 

Finally,  a  last  objection  has  been  advanced  against  this  cri- 
terion of  determinative  motives,  that  is,  the  impossibility  of 
proving  them.  Our  opponents  ask  how  one  can  go  about  proving 
what  has  really  been  the  motive  which  determined  the  agent.  It 
is  easy  to  answer  not  only  that  the  diflBculty  of  proof  in  certain 
cases  does  not  show  failure  of  principle,  because,  in  the  juridical 
and  social  world,  what  is  not  proved  does  not  exist  "in  jura  idem 
est  non  esse  et  non  apparere";  but  above  all,  that  the  proof  of 
determinative  motives,  drawn  from  certain  of  the  circumstances  of 
the  act  and  the  character  of  the  agent,  presents  no  greater  diffi- 
culties than  are  found  to-day  under  the  classical  theories  in  prov- 
ing moral  responsibility,  the  alleged  freedom  of  will  or  intellect, 
and  the  presence  or  absence  of  premeditation.  But  further,  with 
psychological  determinism  proving  the  indestructible  relation 
between  human  acts  and  their  determinative  motives,  this  proof 
would  be  more  logical  and  more  sure  in  scientific  sociology 
and  daily  experience  than  with  the  hypothesis  of  free  will  and 
moral  responsibihty. 

§284.    The  Use  of  Determinative  Motives:  An  Example. 

To  show  by  a  typical  example  the  application  of  the  criteria 
employed  at  the  same  time  (right  infringed  —  determinative 
motives  —  anthropological  category  of  the  delinquent)  we  can 
start  out  with  a  man  found  dead.  This  fact,  by  the  gravity 
of  the  right  destroyed  or  violated,  arouses  great  interest  in 
society,  and  consequently  provokes  a  corresponding  reaction. 
The  first  question  is  whether  the  man  died  a  natural  death  or 

1  Fioretti-Zirboglio,  "La  legittima  difesa,"  2d  ed.  (Turin,  1894). 


§284]  THE  CONDITIONS  OF  CRIMINALITY  429 

was  the  victim  of  foul  play.  In  the  first  case,  the  fact  has  no 
interest  for  the  law,  and  the  social  reaction  lies  in  the  extra-legal 
field  of  sentiment,  pubUc  opinion,  and  natural  economic  conse- 
quences. In  the  second  case,  the  fact  has  interest  for  the  dem- 
onstration of  public  order  and  private  security,  and  society 
reacts  for  ulterior  reasons. 

The  agent  and  the  manner  in  which  death  was  caused  must 
be  determined.  He  may  have  been  killed  by  some  act  of  nature, 
or  he  may  have  been  killed  by  man.  In  the  first  case,  we  are 
again  in  the  extra-legal  order,  and  the  case  does  not  concern 
our  legal  studies.  In  the  second  case,  on  the  contrary,  the  fact 
interests  us  and  leads  us  to  further  searches  to  determine  the 
actor  or  agent,  and  having  determined  that  there  is  a  murderer 
the  question  is  whether  he  was  in  normal  or  pathological  so- 
ciological condition  at  the  time  of  his  crime,  in  other  words, 
was  he  sane  or  insane.  If  he  was  insane,  it  is  enough,  as  I 
have  explained  above,  to  effect  a  defensive  punishment  by  an 
eliminative  method;  but  if  he  was  not  affected  by  insanity,  the 
question  arises  as  to  the  motives  which  have  led  him  to  commit 
murder;  and  under  this  head  the  first  question  is  whether  the 
motives  were  legitimate  or  illegitimate,  social  or  anti-social. 

In  the  first  case,  the  fact  loses  its  anti- juridical  character  and  be- 
comes one  of  the  number  of  misfortunes,  but  not  of  crimes.  But  if 
the  motives  were  anti-social,  the  act  immediately  takes  on  an 
anti-juridical  or  criminal  character,  and  we  must  then  determine 
in  what  measure  they  have  been  anti-social,  and,  above  all, 
study  the  murderer  and  determine  the  anthropological  category  to 
which  he  belongs.  Were  the  motives  eminently  anti-social,  such 
as  vengeance  or  lust.''  Was  the  murderer  a  born  murderer  and 
incorrigible.''  For,  if  he  was,  it  is  useless  to  take  time  in  argu- 
ments on  his  moral  culpability  or  imputability,  and  eliminative 
means  must  be  employed.  But  if  the  motives  were  less  anti- 
social —  disgrace  or  jealousy  —  was  the  murderer  merely  dan- 
gerous through  his  stupidity,  an  occasional  delinquent,  or  one 
carried  away  by  passion.'*  —  then  with  the  aid  of  all  the  details 
of  a  trial  suited  to  determine  the  physiognomy  of  the  act  and 
the  agent,  it  will  perhaps  be  suflScient  to  use  reparative  means 
(in  the  case  of  a  simple  fool  —  or  in  that  of  a  violent  transport  of 
passion  in  an  honest  man,  the  true  type  of  delinquent  by  passion) ; 
or  together  with  the  reparative  means,  repressive  means  (in  the 
case  of  the  occasional  murderer). 


430    POSITIVE  THEORY  OF  PENAL  RESPONSIBILTY  [§  285 

§  286.    Criteria  Applicable  to  An  Attempt. 

The  criteria  of  legal  responsibility  according  to  the  positive 
school  can  thus  be  applied  in  the  case  of  a  homicide  (and  the  same 
reasoning  is  applicable  to  every  other  crime  committed  and  con- 
summated by  a  single  agent),  but  there  are  two  other  kinds  of 
examples:  first,  the  case  of  the  non-consunmiated  crime,  either 
an  attempt  or  a  failure,  committed  by  a  single  agent;  and  second, 
the  case  of  a  crime  either  consummated  or  attempted  or  failing, 
committed  by  several  persons.  Then  new  criteria  must  be  added 
to  those  which  we  have  already  given,  as  new  inductions  for  the- 
ories relative  to  attempt  and  compUcity  in  which  the  classical 
school  gave  new  proofs  of  its  uncertainty  and  its  doctrinairism. 

Let  us  take  up,  first,  the  theory  of  the  attempt.  Since  Roma- 
gnosi  distinguished  a  class  of  abortive  crime  among  criminal  acts 
the  classicists  have  spent  their  time  in  building  theories  on  the 
distinction  between  a  failure  and  an  attempt,  finishing  by  a  well- 
considered  conclusion,  that  it  was  better  for  legislators  to  pay 
no  attention  to  it.  Thus  Carrara,  who  said,  that  "if  a  legis- 
lator in  formulating  prohibitions  disregards  scientific  precepts, 
he  is  guilty  of  an  abuse  of  power,  and  his  law  is  unjust,"  finally 
praised  the  German  legislature  because,  in  Article  43  of  the 
Penal  Code,  it  had  "entirely  abandoned  a  juridical  division  of 
failures";  that  is  to  say,  because  it  "had  entirely  abandoned" 
a  scientific  principle  by  means  of  which  an  abstract  truth  is 
recognized,  but  which  "results  in  practice  in  unsurmountable 
difiBculties  and  injustice."  The  classical  school,  unfortunately, 
has  gotten  lost  in  the  most  dangerous  tangle.  An  older  WTiter, 
a  pure  classicist,^  Buccellati,  has  gone  further,  and  although  he 
accused  the  positive  school  of  scientific  nihilism,  he  beUeved  it 
necessary  not  only  in  practice,  but  also  in  science  to  destroy 
completely  the  theory  of  attempts.  As  to  the  positive  school, 
it  upholds,  as  is  well  known,  the  necessity  of  dealing  in  the  same 
way  with  a  failure  to  commit  a  crime  and  a  consummated  crime. 
In  a  failure,  the  criminal  has  done  all  that  is  necessary  and  all 
that  he  could  do  in  order  to  consummate  the  crime.  Now,  if  the 
rationale  of  social  defense  has  its  root  in  the  external  act  of  man, 
because  it  is  this  act  alone  which  violates  juridical  order,  just  as 
it  is  the  delusion  alone  which  proves  the  insanity  of  the  heredi- 

*♦'  Biicellati,  " Instituzioiu  di  diritto  e  procedure  penale"  (Milan,  1884), 
§§  366,  383. 


§286]  THE  CONDITIONS  OF  CRIMINALITY  431 

ary  insane,  it  is  justified  by  the  temibility  of  the  delinquent; 
and,  consequently,  it  is  clear  that  in  a  crime  which  has  failed 
merely  through  an  accident,  this  temibility  is  proved  by  the  facts 
in  the  case  as  clearly  as  it  would  have  been  by  the  consummated 
crime. 

It  is  a  fact,  however,  that  often  the  failure  of  consummation, 
depending  as  it  does  upon  the  less  energetic  or  less  perverse 
action  of  the  evildoer,  can  form  an  indication  of  a  less  degree 
of  temibility  or  offensive  power.  Just  as  in  daily  life  the  impres- 
sion is  always  much  more  feeble  when  the  material  damage  is 
not  consummated,  so  the  positive  school,  after  estabUshing  a 
primary  general  rule  of  the  assimilation  of  the  failure  and  con- 
summated crime,  decides,  with  Fioretti,  that  in  order  to  consider 
an  attempt  as  a  crime,  it  is  necessary  for  it  to  excite  against  a 
delinquent  an  individual  reaction,  which  is  the  necessary  pre- 
cursor of  social  reaction.  Furthermore,  it  must  never  be  for- 
gotten that  an  attempt  must  not  be  judged  in  itself  or  in  its 
abstract  relations  to  the  juridical  order,  as  the  classical  school 
considers  it,  but  must  always  be  considered  as  a  criterion 
supplementing  that  of  the  determinative  motives  and  of  the 
anthropological  category  of  the  delinquent.  For  an  attempt 
made  with  insufficient  means  to  carry  it  out,  even  if  homicidal, 
has  an  entirely  different  social  and  legal  value  depending  upon 
whether  it  is  the  act  of  an  insane  or  born-criminal  inspired  by 
anti-social  motives,  or  the  act  of  an  occasional  murderer  or  one 
inspired  by  passion. 

§  286.    Criteria  Applicable  to  Complicity. 

The  theory  of  complicity  has  given  rise  in  the  classical  school 
to  a  tangle  of  abstract  distinctions  between  more  or  less  direct 
participants  in  a  crime,  and  has  led  to  absurd  conclusions.  For 
example,  one  who  orders  a  man  subject  to  himself  to  execute  a 
criminal  order  is  not  pimished  if  the  servant  does  not  accept  or 
does  not  execute  it,  and  his  penalty  is  lessened  if  the  servant  in 
his  execution  of  the  act  is  prompted  by  personal  motives.  It 
is  sufficient  to  say  that  in  these  cases  the  general  principle,  ac- 
cording to  the  positive  school,  must  be  as  follows:  Since  the  less 
dangerous  delinquents  (occasional  or  by  passion)  have  a  constant 
psychological  character  (save  in  the  case  of  an  insane  man  who 
commits  a  crime  in  a  transport  of  passion)  which  leads  them  to 
act  by  themselves  and  without  accomplices,  while  the  inverse 


432  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  287 

can  be  seen  in  the  acts  of  the  more  dangerous  deUnquents  (bom 
and  habitual),  complicity  must  therefore,  to  use  the  language 
of  the  classical  theorists,  be  an  aggravating  circumstance.  At 
any  rate,  it  must  be  considered  not  only  as  it  has  been  considered 
up  to  the  present  time  from  the  point  of  view  of  the  more  or  less 
eflScacious  part  that  each  of  the  conspirators  has  taken  in  the 
criminal  act,  but  by  looking  upon  it  as  a  proof  of  the  distinctive 
character  of  the  delinquents  who  must  belong  to  the  more  danger- 
ous categories.  This  principle,  which  I  announced,  has  been 
developed  in  a  strictly  scientific  method  by  Sighele,  and  I  will 
give  only  this  outline,  for  this  book  is  not  suited  for  its  complete 
development.^  The  different  degrees  in  the  execution  of  a  crime, 
such  as  the  unequal  participation  of  the  accomplices,  do  not  pre- 
serve, after  the  abolition  of  penal  dosimetry,  the  value  of  symp- 
toms prompting  segregation  during  a  determinate  time  (with 
periodical  revision  of  sentence  in  the  case  of  the  more  dangerous 
delinquents)  or  even  complementary  criteria  to  determine  in  less 
grave  cases  the  undoing  of  the  harm  done. 

§287.    Social  Accoiintibility:  Conclusion. 

It  is  sufficient  to  have  shown  how  the  positive  school,  throw- 
ing aside  the  contested  and  badly-defined  criterion  of  moral  re- 
sponsibiHty  as  the  reason  of  a  punitive,  or  rather,  defensive  right, 
not  only  substitutes  a  positive  criterion  superior  to  subjective 
mental  processes  and  philosophical  precautions  —  in  other  words, 
the  criterion  of  social  accountability  —  but  further  defines  an 
undeniable  base  for  such  a  criterion,  provided  that  it  is  objective 
(responsive  to  the  needs  of  life  and  drawn  from  facts),  upon 
which  to  base  the  scientific  organism  of  the  principles  of  criminal 
sociology.  In  these  principles,  society,  defending  itself  against 
the  individual  criminal,  will  find,  on  one  hand,  the  necessary 
means  of  its  own  preservation,  and,  on  the  other,  will  see  the 
limits  which  this  necessity  itself  imposes,  so  that  its  rights  and 
those  of  the  individuals  will  be  protected  at  the  same  time.  Thus 
it  is  that  the  reformed  criminal  science  on  one  hand  avoids  a 
certain  confusion,  which,  obscuring  more  and  more  the  notions 
of  responsibility,  involves  legislators  and  judges  in  difficulties 
without  solution,  but  dangerous;  and,  on  the  other  hand,  assures 

1  See  Sighele,  "La  teorica  positiva  della  complicity,"  2d  ed.  (Turin,  1894); 
"La  folia  delinquente";  Garofalo,  " Criminalogia,"  2d  ed.,  pp.  361  et  seq.;  Allongi, 
"La  camorra";  "La  Maffia." 


§  287]  THE  CONDITIONS  OF  CRIMINALITY  433 

to  the  individual  and  to  society  as  well,  a  practical  course  of  true 
justice.^ 

The  last  of  the  objections  which  are  ordinarily  made  to  the 
new  ideas,  and  the  one  with  which  I  will  end  this  chapter,  is  that 
with  our  Darwinian  mechanism  we  banish  from  the  defensive 
department  of  society  all  idea  of  justice.  Garofalo  ^  answered 
this  objection  by  saying  that  the  word  "justice"  is  an  im- 
proper use  of  language  in  penal  law;  but  this  does  not  seem  to 
me  sufficient.  If  we  mean  by  justice,  as  Carrara  and  the  more  or 
less  determinative  classical  criminologists  do,  a  mission  delegated 
to  man  by  the  Divinity,  or,  at  least,  an  ethico-rehgious  mission 
of  weighing  good  and  evil  and  assigning  them  a  proportionate 
retribution,  then  to  speak  of  justice  in  relation  to  the  function  of 
defending  society  is  not  only  to  commit  an  impropriety  of  language, 
but  to  introduce  a  heterogeneous  conception.  But  if  justice 
means  to  us,  as  it  did  to  the  Romans,  "Unicuique  suum  tribuere"; 
in  other  words,  if  it  consists  in  finding  and  applying  a  relation 
of  convention  and  social  utility  variable  according  to  time  and 
place,  between  the  dangerous  act  which  has  been  committed  and 
the  most  suitable  means  of  hindering  its  repetition,  either  by  its 
author  or  by  others,  then  justice  is,  and  always  will  be,  an  essen- 
tial characteristic  of  that  defensive  function,  but  it  will  never 
have  an  ethico-religious  character. 

The  answer  to  the  claim  that  the  denial  of  free  will  renders 
moral  law  useless  and  impossible  is  that  death  through  sickness 
does  not  render  the  laws  of  therapeutics  useless  and  impossible; 
and  moral  laws  exist  for  those  who  by  their  physical  or  psychi- 
cal temperament  can,  or  even  should  adapt  themselves  to 
them  as  to  a  law  of  life.'  Therefore,  we  can  reply  to  those 
who  say  that  once  moral  freedom  is  excluded,  justice  cannot 
seriously  be  spoken  of;  that  justice  in  our  sense  of  social  justice 
is  the  relation  between  one  man  and  another,  between  an  in- 
dividual and  society,  not  constant  and  absolute,  but  variable 
and  relative  and  at  the  same  time  positive  and  human.  For 
it  would  be  unjust,  that  is  to  say,  dangerous  and  unnecessary 
from  a  social  point  of  view  to  punish  him,  for  example,  who  in 
case  of  self-defense  has  killed  the  aggressor,  or  to  imprison  an 

1  The  eclectic  Saleilles  has  repeated  this  in  "L'individualisation  de  la  peine," 
p.  7.      (English  translation,  Boston,  1911.) 

*  Garofalo,  "Di  im  criterio  positivo  di  penality,"  p.  70. 

'  Schiattarella,  "I  presupposti  del  diritto  scientiiBco,"  Introduction  (Palermo, 
1883).  p.  82. 


434  POSITIVE  THEORY  OF  PENAL  RESPONSIBILITY  [§  287 

occasional  delinquent  in  an  asylum  for  the  criminal  insane,  just 
as  it  would  be  to  protect  ourselves  against  a  homicidal  maniac 
by  a  fine.^  This  is  why  we  can  say  that  in  the  system  of  crim- 
inal sociology,  the  judges  really  judge  the  author  of  the  crime, 
and  not  in  the  way  that  they  claim,  passing  the  limits  of  human 
justice  to  measure  accurately  the  intangible  degrees  of  moral 
responsibihty  nor  to  assign  such  a  sum  of  punishment  to  such  a 
sum  of  culpability,  but  in  the  positive  sense  that  they  seek,  above 
all,  facts  which  prove  that  the  defendant  has  committed  the  act, 
and  to  establish  that  degree  of  social  defense  that  it  is  best  to 
apply  to  the  criminal.  Once  more,  therefore,  it  can  easily  be 
seen,  how  deceived  they  are  who  accuse  us  of  making  an  idol 
of  the  State  and  of  destroying  for  its  benefit  all  individual  rights. 
This  is  not  true;  but  in  face  of  the  exaggerated  predominance 
of  social  rights  in  the  Middle  Ages,  and  of  indi\adual  rights  which 
subsequently  developed  in  1789  through  a  reaction,  we  try  to 
establish  in  the  criminal  field  an  equiHbriima  between  the  rights 
of  an  individual  who  has  committed  a  crime  and  those  of  the 
society  of  honest  men. 

Nothing  is  less  justifiable,  except  as  a  first  and  incomplete 
impression,  than  to  accuse  the  positive  school,  as  has  been  done, 
of  despising  the  rights  of  men,  of  making  of  the  delinquent  an 
instrument  in  the  hands  of  society,  and  of  stating  that  "the  indi- 
vidual is  made  for  the  State, and  not  the  State  for  the  individual."' 
Above  all,  we  give  to  the  responsibihty  of  the  individual  a  unique 
and  entirely  positive  basis ;  a  solidarity  —  for  benefits  as  for 
misfortunes,  for  rights  as  for  duties  —  between  all  the  asso- 
ciates and  the  social  organism  which  they  compose.  On  the 
other  hand,  we  impose  upon  the  collective  entity  considerable 
permanent  obUgations  to  the  advantage  of  the  individuals  by 
giving  preeminence  to  prevention;  that  is  to  say,  to  the  ameli- 
oration of  social  environment  over  violent  and  easy  repression 
which  we  measure  w4th  particular  care  by  the  rules  of  social  jus- 
tice.    I  will  give  once  more  our  real  conclusion. 

While  the  Middle  Ages  saw  only  the  delinquent,  and  the  clas- 
sical school  itself  sees  only  the  man,  it  is  necessary,  in  order  to 
conform  to  experimental  truth  to  consider  delinquent  man,  placing 

1  For  the  conception  of  social  justice  according  to  the  positive  school  see  Carelli, 
"Crimen  morbus,"  in  the  "Archiv.  di  psich."  (1887). 

*  Pdetti,  "  La  persona  giuridica  nella  scienza  del  diritto  penale,"  Cap.  X;  Dorado 
Mondero,  "  L'aatxopologia  criminal  in  Italia,"  p.  43. 


§  287]  THE  CONDITIONS  OF  CRIMINALITY  435 

thus  the  undeniable  rights  of  man  which  exist  even  in  the  delin- 
quent, and  the  none  the  less  undeniable  rights  of  honest  society 
menaced  by  the  delinquent.^  Thus,  as  Le  Gall  said  in  his  inaug- 
ural address  at  Lyons:  "It  is  possible  to  have  a  higher  idea  of  re- 
pressive justice,  but  we  must  agree  that  there  is  none  which  is  more 
solid  in  its  principles  and  more  fecund  in  its  results."  ^  In  con- 
clusion: Penal  justice  as  a  defensive  department  of  society  and  the 
science  which  governs  this  department  are  always  fully  justified 
in  their  existence,  even  when  free  will  is  denied,  although  they 
must  change  radically  in  means  and  in  end.  This  is  implicitly 
recognized  in  everyday  life  in  the  use  of  punishment  for  animals 
or  for  children  in  order  to  change  and  regulate  their  future  con- 
duct, although  every  one  knows  that  they  are  totally  without 
moral  freedom.  It  is  just  this  continual  and  universal  applica- 
tion of  punishment  and  painful  reactions  against  harmful  or 
criminal  acts,  which  gives  rise  in  man,  and  even  to  a  certain 
extent  in  animals,  to  the  idea  of  responsibility.  This  idea,  as 
Stuart  Mill  and  many  other  psychologists  with  him  have  said,' 
is  nothing  but  the  expectation  of  the  punishment  consequent 
upon  a  misdeed,  an  expectation  produced  in  us  by  past  experi- 
ence of  this  bond  of  succession  between  one  fact  and  another,  be- 
tween the  action  and  its  corresponding  reaction.  And  this  idea 
(Spencer  says)  is  transmitted  by  heredity,  and  seems  anterior  not 
only  to  all  personal  experience,  but  even  to  all  social  experience. 

^  Ferri,  "Da  Cesare  Beccaria  a  Francesco  Carrara,"  Prelim,  lesson  before  the 
University  of  Pisa,  in  "Archivio  giuridico"  (1890),  XXTV;  fasc.  6,  partially  re- 
published in  "Nuova  antologia"  (16  September,  1899). 

*  Le  Gall,  "Du  droit  depunir  d'apres  la  science  positive"  (Lyons,  1885),  p.  19. 

3  Stuart  Mill,  "The  Philosophy  of  Hamilton,"  Chap.  XXVI;  Bain,  "The 
Emotion  and  the  Will,"  Chap.  XV;  Guyau,  "La  morale  anglaise  contemporaine," 
p.  335;  Spencer,  Minzloff,  "Etudes  sur  la  criminalite,"  in  the  "Philosophic  posi- 
tive" (September,  December,  1880). 


PART    IV 
PRACTICAL   REFORMS 

CHAPTER  I 

INFLUENCE   OF  THE   NEW   DATA   OF   BIOLOGY  AND  CRIMINAL 
SOCIOLOGY   ON   RECENT   PENAL   LAWS 

Parallel  penalties  aggravating  and  extenuating  circumstances  —  asylums  for  the 
criminal  insane,  special  procedures  for  delinquent  minors  —  measures 
against  recidivists  —  reaction  against  short  term  imprisonments. 

§  288.    Influence  of  the  New  Data. 

The  data  of  anthropology  and  criminal  statistics  and  the  posi- 
tivist  theory  of  responsibility  based  on  them,  although  uncoor- 
dinated into  a  scientific  system  except  by  the  new  school,  are  too 
conclusively  confirmed  by  everyday  life  for  their  influence  not 
to  be  already  felt,  imperfectly  it  is  true,  in  judicial  decisions  and 
legislation.  Such  data  gives  the  means  of  radically  changing  the 
criteria  and  the  mechanisms  of  penal  justice,  and  therefore  one 
should  not  consider  "strange,"  as  did  Ottolenghi,^  "the  slowness 
with  which  the  progress  of  the  anthropologico-criminal  school 
operates  in  legal  appHcations."  There  is  no  question  (as  in  the 
beginnings  of  the  classical  school)  of  engrafting  reforms  in  detail 
on  the  old  trunk  of  penal  and  procedural  law.  It  is  necessary 
to  reach  a  new  orientation  of  public  and,  therefore,  of  judicial 
and  legislative  consciousness  in  the  manner  of  viewing  crimes  and 
criminals.  After  that,  as  we  have  already  seen,  the  technical 
legal  questions  (such  as  "partial"  responsibility,  attempts,  cumu- 
lative offenses,  statutes  of  limitation,  appeal,  and  revision),  which 
weary  and  divide  the  metaphysical  criminalists,  will  lose  their 
practical  and  theoretical  importance  in  a  penal  justice  inspired  by 
the  data  and  inductions  of  criminal  sociology,  with  its  fundamental 

^  Ottolenghi,  Preface  in  Bonanno,  "D  delinquente  per  passione"  (Turin,  1896). 
And  yet  he  pointed  out  the  reasons  for  this  delay  in  his  preliminary  lesson  on 
"Alcuni  problemi  di  antropologia  criminale"  (Sienna,  1892),  alleging  it  to  be, 
the  cult  of  intangible  principles,  the  lack  of  practical  sense  among  the  Latins 
and  the  insufficient  pursuit  of  the  biological  sciences. 

436 


§288]       INFLUENCE  OF  DATA  ON  PENAL  LAWS  437 

criterion  of  segregation  for  an  indeterminate  period  under  periodic 
revision  of  sentences  for  the  authors  of  serious  misdeeds  denoting 
atavistic  criminality. 

Nevertheless,  the  infiltration  and  applications  of  the  new  data 
is  already  being  felt.  .  .  .  And  as  I  have  aheady  spoken  ^  of  prac- 
tical penal  jurisprudence  in  its  relation  to  the  new  data  of  crim- 
inal sociology,  it  is  not  necessary  to  treat  of  it  again. ^  But  it  is 
appropriate  to  point  out  that  penal  legislation,  in  spite  of  all  the 
opposition  of  the  scandalized  classical  school,  has  been  forced  to 
yield,  to  some  extent,  to  the  scientific  observation  applied  to  crim- 
inals and  penal  systems.  Prius,  moreover,  recently  acknowledged 
that  "the  anthropologico-criminal  school  has  had  the  merit  of 
showing  the  insuflficiency  of  the  fundamental  criterion  of  the  Penal 
Code,  based  on  the  conventional  and  abstract  type  of  criminal."  ^ 
In  proof,  it  suffices  to  recall  a  few  of  the  most  conspicuous  ex- 
amples. And  besides  the  direct  influence  of  the  new  data  on  legis- 
lation, there  is  perceptible  an  indirect  influence  noticeable  not 
alone  in  the  restricted  field  of  penal  laws.  Indeed,  the  legislators 
of  to-day,  impressed,  on  the  one  hand,  by  the  revelations  of  the 
positivist  sciences  and  especially  by  those  of  statistics,  biology, 
ethnography,  and  anthropology,  and,  imbued,  on  the  other,  with 
what  may  be  called  the  prejudice  of  social  and  political  artificial- 
ism,  have  been  afflicted  with  a  veritable  law-making  mania  by  the 
illusory  idea  that  they  can  and  should  apply  to  every  newly- 
observed  phenomenon  the  supposed  remedy  of  a  law,  a  regula- 
tion, or  for  want  of  something  better,  an  article  of  the  penal 
code. 

Thus  (as  Spencer  said)  the  citizen  is  to-day  enveloped  in  a 
maze  of  laws,  decrees,  and  regulations,  which  surround,  confine, 
and  strangle  him  before  his  birth,  and  even  until  after  his  death. 

»  See  p.  II,  Chap.  VII,  ante. 

2  In  the  "Bulletin  de  I'union  intemationale  du  droit  penal"  (1893,  Fasc.  IV) 
and  "Scuola  positiva"  (Sept.,  1893),  see  reports  of  Tarde,  Garofalo,  and  Liszt 
"on  the  influence  which  modem  doctrines  have  exercised  on  the  fundamental 
principles  of  penal  law."  Liszt  concluded  his  report  on  the  "Application  de 
I'anthropologie  criminelle"  in  the  "Actes  du  congres  de  Bruxelles"  by  saying 
that  "the  penal  legislation  of  the  future  must  be  based  on  the  data  of  criminal 
anthropology."  For  a  complete  positive  criterion  see  Franchi's  report  to  the 
Congress  of  Criminal  Anthropology  at  Amsterdam,  in  "Actes  du  congres  d'an- 
thropologie  criminelle  d' Amsterdam"  (1901),  p.  155.  See,  also,  Fedozzi,  "Possibile 
consequenze  del  positivismo  i>enale  nel  sistema  de  diritto  penale  intemazionale," 
in  the  "Rivista  italiana  di  scienze  giuridiche"  (1897,  XXII,  Fasc.  11),  and 
prior  to  him,  Zerboglio,  "Delia  prescrizione"  (Turin,  1893),  Chap.  III. 

3  Prius,  "Science  penale  et  droit  positif"  (Brussels,  1835). 


438  PRACTICAL  REFORMS  [§289 

He  is  the  victim  of  those  whom  the  witty  Bordier  called  "the 
gardeners  and  the  orthopedists  of  society,  people  who  think  they 
can  mould  it  and  shape  it  to  their  fancy  because  they  have  no 
knowledge  of  the  naturalness  of  social  laws  and  phenomena."  ^ 
Moreover,  even  outside  of  criminal  sociology,  there  is  the  same 
tendency  in  every  part  of  social  life:  nothing  but  classical  doc- 
trinairism  is  found  in  the  political,  economic,  and  juridical  sciences, 
—  nothing  but  empiricism  in  the  laws.  And  this  is  why,  in  our 
special  domain,  the  practical  defects  and  daily  impotence  of  the 
present  systems  of  penalty  and  procedure,  apparent  to  every- 
body, are  the  best  aUies  of  positivist  science,  while  they,  in  turn, 
by  the  practical  reforms  they  propose,  propagate  and  confirm 
their  theoretical  inductions.  On  the  other  hand,  the  conscious- 
ness of  what  has  been  called  "legislative  decadence"  is  general 
to-day  in  all  countries  even  though  it  be  but  the  transitory  effect 
of  this  period  of  contrast  between  scientific  doctrinairism,  far 
removed  from  the  realities  of  life,  and  the  legislative  empiricism 
which  is  its  consequence. 

§  289.    Examples  of  Influence  of  New  Data. 

Coming  to  the  most  direct  influence  of  the  new  data  of  anthro- 
pology and  criminal  statistics,  the  first  illustration  that  we  find 
is  as  follows:  In  the  most  recent  penal  legislations,  such  as  the 
Dutch  Code,  there  is  set  forth  and  applied  the  idea  of  reducing 
imprisonments  to  two  kinds:  the  one,  more  rigorous  for  the  more 
serious  and  dangerous  misdeeds:  the  other,  milder,  called  simple 
detention  or  "surveillance  honnete"  for  transgressions  of  pohce 
regulations,  impremeditated  crimes,  and  other  crimes  not  induced 
by  malevolent  passions.^  The  preliminary  labors  on  the  Itahan 
Penal  Code  show  that  the  idea  of  these  two  kinds  of  detentive 
punishments  subject  to  a  difference  of  criminal  impulsions,  al- 
ready existing  in  the  germ  in  the  Sardo-Itahan  Code  of  1859 
(reclusion  and  relegation)  had  made  much  progress  and  even 
reached  a  more  or  less  complete  application,  from  the  first  prop- 
ositions developed  by  De   Foresta  in  the  Commission  of  1866 

^  Spencer,  "Political  Essays";  Bordier,  "La  vie  des  societes,"  Chap.  XVII; 
De  Greef,  "Introduction  k  la  sociologie"  (Brussels,  1889),  pp.  316,  317;  Fuld, 
"Einfluss  der  Kriminalstatistik  auf  Strafgesetzgebimg,"  in  "  Archiv  fUr  Strafrechta- 
wissenschaft"  (Berlin,  1885),  p.  225. 

*  Brusa,  "La  detenzione  semplice  o  cosidetta  custodia  onesta  in  Paesi  Bassi," 
in  the  "  Ri vista  carceria"  (X,  Fasc.  8,  9).  To  the  same  effect  Pessina,  "Sul  secondo 
quesito  del  congresso  penitenziario  di  Stocolma,"  id.,  pp.  161  et  seq. 


§289]       INFLUENCE  OF  DATA  ON  PENAL  LAWS  439 

until  the  first  draft  of  Zanardelli's  Code,  which  gave  the  judge, 
in  each  particular  case,  the  power  to  give  a  reclusive  sentence 
when  "the  character  of  the  criminal  deduced  from  the  motives 
of  the  crime"  ^  indicated  perversion,  because  of  the  degrading 
and  anti-social  character  of  the  motive,  or  to  give  a  detentive 
sentence  where  the  motive  of  the  crime  was  not  anti-social.  But 
the  praises  of  the  positivists,  who  put  their  faith  in  this  provi- 
sion, led  Zanardelli  later  to  take  this  power  away  from  the  judge. 
Nevertheless,  it  is  quite  impolitic  doctrinairism  to  refuse  to  follow 
public  sentiments  of  pity  and  sympathy  for  the  condemned,  when 
the  motives  are  less  odious,  for  example,  in  the  cases  of  infanti- 
cide inspired  by  honor,  duelling,  excessive  self-defense,  not  to 
mention  crimes  with  a  political  motive.^ 

Another  embryonic  and  indirect  recognition  of  one  of  the 
most  important  conclusions  of  the  positivist  school,  the  distinc- 
tion between  the  different  categories  of  criminals,  is  found  in 
the  system  adopted  by  a  few  foreign  codes  and  proposed  in  the 
ItaUan  draft  of  Mancini,  of  enumerating  certain  extenuating 
and  aggravating  circumstances  common  to  all  crimes.  These 
consist  ia  some  of  the  psychological  characteristics  of  the 
different  types  of  criminals,  for  instance,  a  prior  blameless  or 
immoral  life,  honorable  or  disgraceful  passion,  repentance  and 
confession  or  former  conviction.  That  is,  however,  an  insuffi- 
cient and  purely  formal  acknowledgment  of  the  real  truth, 
but  shows  that  the  ground  is  being  prepared  for  a  serious  and 
systematic  application  of  positivism  in  legislation.  A  strik- 
ing thing  in  this  connection  is  the  substitution  of  the  twofold 
division  of  offenses  (delicts  and  contraventions)  for  the  tri- 
partite division  (crimes,  delicts,  and  contraventions).  Formerly 
the  laws  based  their  provisions  on  the  classification  of  offenses 
drawn  from  the  entirely  arbitrary  and  exterior  criterion  of  the 
penalty  attached  to  them  (tripartition),  but  the  necessity  is  now 
felt  of  basing  them  on  what  is  called  "the  very  character  of  the 
offense"  (bipartition) .  A  step  is  made  towards  reaching  the 
only  scientific  and  practical  base  —  a  classification  drawn  from 
the  character  of  the  offenders,  as  we  shall  see  further  on  when 

1  Zanardelli,  "Relazione  sul  codice  penale"  (Rome,  1883),  pp.  10-23. 

*  The  idea  of  two  parallel  penalties  has  recently  been  taken  up  again  by  Gor- 
gon, "Sur  les  peines  non  deshonorantes,"  in  the  "Revue  penitentiaire"  (1896), 
pp.  830  et  seq.  For  investigation  of  this  subject  by  a  great  number  of  criminal- 
ists, see  id.,  pp.  1099, 1407,  and  (1897)  p.  144.  See  also,  Saleillea,  " L'individualisa- 
tion  de  la  peine,"  pp.  225  et  teq. 


440  PRACTICAL  REFORMS  [§289 

we  come  to  the  exposition  of  our  system  of  social  defense.^ 
Another  evident  example  of  the  necessary  infiltration  of  the  new 
ideas  into  penal  legislation  is  afforded  by  the  establishment  of 
asylums  for  the  criminal  insane.  These  originated  and  were  used 
in  Anglo-Saxon  countries  (where  there  is  a  stronger  sense  of  the 
practical  and  where  the  doctrinairism  of  criminal  theories  has  less 
weight).  Henceforth,  they  demand  consideration  from  all  law- 
makers and  judges  who  have  lost  their  bearings  between  the  new 
data  of  psychology  and  criminal  psychopathology  and  the  old 
theory  of  moral  responsibility. 

The  same  significance  must  be  given  to  the  special  pro- 
cedures adopted  for  juvenile  delinquents  in  France,  Belgium, 
and  Holland.  These  have  been  substituted  for  the  dishonor 
of  a  public  trial  and  the  contagious  corruption  of  the 
prisons.'^  In  the  same  connection,  we  may  point  out  the 
laws  suggested  and  applied  against  the  increasingly  disquieting 
growth  of  habitual  criminality.  Such  criminals,  considered  from 
whatsoever  standpoint,  whether  as  the  effect  of  congenital  tend- 
encies towards  crime,  as  the  product  of  prison  corruption  and 
social  environment,  or  in  various  cases  as  attributable  to  both 
causes,  are  nevertheless  one  of  the  strongest  indictments  of  the 
penal  laws  and  systems  inspired  by  the  classical  theories  and  a 
real  gangrene  of  the  social  organism.  This  also  is  the  meaning 
and  reason  of  the  unanimous  reactionary  movement  every  day 
more  marked  against  cellular  systems  in  general,  which  I  called 
"one  of  the  aberrations  of  the  nineteenth  century,"  and  in  par- 
ticular against  the  enormous  abuse  of  short  term  sentences.  In 
the  last  place,  we  find  a  notable  example  of  this  influence  of  new 
criminological  ideas  in  the  prop>osed  law  presented  to  the  French 
Chamber  in  1894,  by  the  Deputy  Martineau.^  Blanc,  who 
reviewed  it,  said,  among  other  things,  that  "it  is  necessary  to 
spiritualize  the  code";  that  is  to  say,  to  give  a  greater  impor- 
tance to  determinative  motives  because  "the  essence  of  crime  does 
not  lie  in  the  material  act  but  in  the  psychical  state  of  the  agent," 

^  For  the  manner  of  directing  laws  by  this  principle  of  "Unequal  treatment 
of  imequal  men,"  see  Olivieri,  "De  la  loi  penale  dans  ses  effets  et  ses  modes  d'ap- 
plication  au  point  de  vue  de  I'anthropologie  criminelle,"  in  the  "Actes  du  congr^ 
international  d'anthropologie  criminelle"  (Lyons,  1890),  p.  511. 

*  See  Riviere,  "Expose  comparatif  des  methodes  adoptees  k  I'etranger  pour 
la  defense  des  enfants  traduits  en  justice,"  in  the  "Revue  penitentiaire"  (May, 
1899),  p.  766. 

*  Blanc,  "Une  nouvelle  conception  du  d6lit,"  N.  R.  (1  Jan.,  1894). 


§289]       INFLUENCE  OF  DATA  ON  PENAL  LAWS  441 

and  concludes,  that  "there  are  no  crimes  but  only  criminals." 
According  to  the  Martineau  plan,  the  penal  code  should  give  a 
list  of  criminal  acts,  but  without  penalties.  But  there  would  be 
eight  degrees  of  guilt,  to  which  deportation,  death,  imprisonment 
for  life  at  hard  labor,  imprisonment  for  a  term  of  years  at  hard 
labor,  confinement  for  a  space  exceeding  one  year,  and  so  on, 
would  correspond.  The  jury  would  be  asked  in  what  degree  the 
author  of  the  crime  was  guilty,  and  the  court  would  apply  the 
corresponding  penalty. 

This  attempt  at  legislative  reform,  although  useless  in  itself 
(for  it  wavers  between  the  old  and  the  new  theories)  deserves 
to  be  noticed  because  it  is  an  eloquent  sign  of  the  times. 
But  such  practical  reforms,  which,  grafted  on  the  old  trunk 
of  the  classical  theories  of  crime  and  punishment,  represent 
only  empirical  and  isolated  expedients,  are  also  an  integral 
part  of  the  new  system  of  social  defense  against  crime. 
We  have  only  spoken  of  them  here  to  give  an  example  of,  on 
one  hand,  the  inevitable  and  undeniable  interest  of  the  new  data 
of  criminal  sociology  on  penal  laws,  and  on  the  other  hand,  the 
necessity  of  abandoning  henceforth  the  timid  and  sterile  prac- 
tice of  expedients  and  concessions  in  order  that  we  may  not  be 
hampered  in  undertaking  radical  reforms  of  procedure  and  re- 
pressive systems  with  a  free  hand,  for  this  procedure  and  these 
systems  are  the  vital  and  rich  results  of  new  scientific  studies, 
and  should  be  realized  in  a  more  rational,  human,  and  efficacious 
system  of  a  social  defense  against  crime.^ 

'  Dorado,  in  "Du  droit  penal  repressif  au  droit  penal  preventif,"  D.  I.  I.  S. 
(Paris,  1899),  Vol.  V,  p.  359,  recalls  other  examples  of  this  indirect  influence  on 
recent  laws  by  scientific  ideas  of  criminality,  such  as  provisions  against  vagabond- 
age, etc.    See  also  Stoos,  "Der  Kampf  gegen  das  Verbrechen"  (Besue,  1894). 


CHAPTER  II 

THREE   GENERAL   PRINCIPLES   FOR   PROCEDURAL   REFORM 
ACCORDING   TO   THE   POSITIVIST   SCHOOL 

Equilibrium  between  individual  rights  and  social  guarantees.  The  proper  office 
of  the  penal  sentence  aside  from  the  illusory  dose  measurement  of  moral 
responsibility.  Continuity  and  solidarity  between  the  different  practical 
fimctions  of  social  defense.  Historical  reason  and  illustrations  of  the  first 
principle.  Exaggerations  of  the  doubt  in  favor  of  the  accused  ("in  dubio 
fro  reo  ")  in  forms  of  atavistic  criminality.  Revision  of  the  trial.  Pardons 
and  amnesties.  Reparation  of  the  damages.  Proposals  of  the  positivist 
school  in  the  individual  direction:  popular  penal  action,  reparation  of 
judicial  mistakes,  least  quota  of  criminality. 

§  290.    Three  General  Principles  of  the  Positive  School  or  Procedural 

Reform. 

Beyond  the  innovation  of  the  theoretical  principles,  which 
the  experimental  study  of  phenomena  introduces  into  the  science 
of  crime  and  pimishment,  because  of  the  narrow  boundaries 
which  unite  philosophical  systems,  political  measures,  and  crim- 
inal theories  and  procedure,  in  the  realm  of  fundamental  economic 
social  conditions,  other  horizons  are  shown  by  the  new  data  of 
natural  social  sciences.  If  the  positive  school  reduces  the  practi- 
cal importance  of  the  penal  code  to  a  minimum,  it  throws  a  clearer 
light  on  the  laws  of  procedure  and  criminal  measiu-es,  for  the 
very  reason  that  their  object  is  to  take  punishment  out  of  the 
ethereal  regions  of  legislative  menace  and  place  it  in  the  practical 
sphere  of  the  social  clinic  for  protection  against  the  disease  of 
crime.  It  also  creates  the  necessity  of  reversing  these  systems  of 
procedure  and  repression  in  order  to  harmonize  them  with  the 
new  data  of  criminal  sociology.  If  a  study  of  psycho-physio- 
logical laws  showing  that  the  Uttle  efficiency  found  in  penalties 
is  due  not  to  their  severity  but  to  their  promptness  and  certainty 
(without  speaking  of  their  fitness  with  the  personal  quahties  of 
the  condemned),  it  is  clear  that  the  laws  of  procedure  acquire 
greater  social  value.  For,  upon  them  alone  depends  the  beUef 
of  the  probabiUty  of  an  escape  from  punishment,  which  is  one  of 
the  most  powerful  sociological  factors  in  crime.  And  the  reason 
that  this  rule  has  always  remained  a  dead-letter  in  practice, 

442 


§  291]      PRINCIPLES  FOR  PROCEDURAL  REFORM  443 

although  constantly  cited  by  classical  criminologists,  can  only 
be  explained  by  the  failure  of  a  positive  base  such  as  is  offered 
to-day  by  criminal  sociology. 

Henceforth,  the  eloquence  of  facts,  more  powerful  than  syllogis- 
tic ingenuity,  will  probably  cause  legislators  to  spend  less  time  on 
criminal  reforms  and  more  time  on  the  reform  of  courts  and 
prisons.  This  leads  to  the  belief  which  I  have  stated  before  the 
Chamber  of  Deputies,  that:  "The  penal  code  is  a  code  made  for 
rascals,  while  a  code  of  penal  procedure  is  made  to  safeguard 
honest  men  who  obtain  no  justice  in  the  courts,  and  who,  however, 
are  not  rascals."  ^  Thus,  the  fundamental  reason  for  a  punitive 
department  in  the  State,  being  henceforth  deduced  from  the  need 
of  social  protection,  with  criteria  independent  of  the  hypothetical 
moral  liberty  of  the  individual,  and  with  the  recognition  of  the 
truth  that  delinquents,  who  do  not  possess  the  unity  of  an  abstract 
type,  must  be  studied  and  treated  in  different  ways  as  the  natural 
factors  of  the  crime  committed,  shows  them  to  be  more  or  less 
incapable  of  adaptation  to  circumstances.  The  rules  of  procedure 
and  prisons  must  be  varied  accordingly.  The  innovations,  which 
the  positive  school  must  introduce  in  the  system  of  procedure,  can 
be  considered  as  depending  upon  these  three  general  principles: 

(A)  An  equilibrium  of  right  and  protection  must  be  estab- 
lished between  the  individual  to  be  judged  and  the  society  which 
judges,  in  order  to  escape  the  exaggerations  of  individuaUsm 
introduced  by  the  classical  school,  which  failed  to  distinguish 
between  dangerous  and  not  dangerous,  atavistic  and  evolutive 
delinquents,  for  the  reasons  already  indicated. 

(B)  The  duty  of  a  criminal  judge  is  not  to  determine  the 
degree  of  moral  responsibihty  of  a  delinquent  but  his  material 
guilt  or  physical  responsibihty,  and  this  once  proven,  to  fix  the 
form  of  social  preservation  best  suited  to  the  defendant  according 
to  the  anthropological  category  to  which  he  belongs. 

(C)  Continuity  and  solidarity  between  the  different  practical 
divisions  of  social  defense  from  the  judiciary  poUce  to  sentence 
and  execution. 

§  291.    The  Same  Subject 
As  the  last  two  principles  will  be  developed  later,  together 
with  a  series  of  practical  reforms  which  depend  on  them,  it  is 

^  Ferri,  "Discorsi  parlamentari  sul  nuovo  codice  penale"  (Naples,  1889), 
p.  7,  in  "La  negazione  del  libero  arbitrio." 


444  PRACTICAL  REFORMS  [§292 

best  to  take  up  only  the  first  principle  at  this  point.  Naturally, 
it  is  a  capital  rule  for  our  reforms,  but  it  is  important  from  now 
on  to  notice  its  relation  to  the  classical  systems  of  procedure. 
Just  as  criminal  law  from  the  time  of  Beccaria  has  shown,  by  a 
continual  diminution  of  punishment,  in  all  its  sentences  a  reaction 
against  the  impractical  and  exaggerated  severity  of  the  reprisals 
in  the  Middle  Ages,  so  criminal  procedure  since  1800  has  been  an 
analogous  reaction  against  the  abuses  of  the  inquisitorial  system 
of  the  Middle  Ages  shown  by  a  constant  increase  in  individual 
guarantees  against  social  power.^  But  further,  while  we  accept 
in  criminal  law  the  advances  made  by  the  classical  school  in  the 
determination  of  the  limits  of  the  balance  between  the  individual 
and  society,  still  we  believe  it  is  necessary  to  avoid  the  irrational 
exaggerations  contrary  to  the  supreme  necessity  of  social  defense. 
So  in  criminal  procedure,  while  holding  to  the  just  guarantees 
against  the  predominance  of  the  accusatory  system  in  judicial 
organization  as  irrevocable  conquests  of  individual  liberty,  still 
it  is  necessary  to  effect  in  this  way  our  mission  of  balancing  the 
rights  of  the  individual  and  those  of  society  by  remedying  possi- 
ble exaggerations.  These  exaggerations  are  due  to  the  fact  that 
the  classical  school  has  not  distinguished  atavistic  from  evolutive 
criminality,  and  has  consequently  carried  into  its  judgment  of 
all  forms  of  delinquency  the  extension  of  individuaUsm,  to  which 
the  classical  criminologists  have  been  led  by  the  historical  circum- 
stances of  the  evolution  of  the  masses,  but  which,  however,  should 
be  limited  to  the  evolutive  forms  of  delinquency.  The  practical 
mission  of  the  positive  school  really  consists  in  this,  and  although 
it  may  have  first  fallen  into  the  contrary  exaggeration  and  con- 
sidered all  delinquents  as  types  of  atavistic  and  anti-human  dehn- 
quency,  it  now  has  reestablished  the  equilibrium  of  individual 
rights  and  social  needs,  admitting  the  preeminence  of  individual 
guarantees  in  the  treatment  of  evolutive  delinquency,  and  that 
of  the  defense  of  society  in  the  treatment  of  criminality. 

§  292.    Examples  of  Exaggerated  Individualistic  Tenets. 

Let  us  take  up  now  some  examples  of  these  exaggerations  in 
the  individualistic  sense,  inacceptable  in  cases  of  the  most  incor- 
rigible and  dangerous  criminals.^     The  presumption  of  innocence, 

^  Maury,  "La  legislation  criminelle  sous  I'ancien  regime,"  R.  D.  M.  (1  Sep- 
tember;  15  October,  1877). 

*  To  the  same  eCFect  (but  with  certain  reservations,  because  of  a  lack  of  the 
ilistinction  made  by  me  between  atavic  and  evolutive  delinquency),  see  the  intro- 


§292]      PRINCIPLES  FOR  PROCEDURAL  REFORM  445 

and  with  it  the  most  general  rule  "in  dubio  pro  reo"  has  cer- 
tainly a  basis  of  truth,  and  is  in  fact  obligatory  in  the  preparatory 
period  of  a  case,  that  is  to  say,  in  the  procedure  of  the  district 
attorney's  office,  when  there  are  only  suppositions  or  doubts 
concerning  the  defendant.  This  presumption,  derived  from  the 
necessity  of  considering  every  citizen  honest  until  the  contrary 
is  proven,  has  an  incontestable  positive  base,  which  is  that  the 
delinquents  (in  whose  niunber  we  consider  those  who  are  not 
discovered)  form,  in  fact,  a  small  minority  of  men.  It  should 
apply,  therefore,  to  the  material  proof  of  the  deed,  that  is  to  say, 
to  the  physical  participation  of  an  accused  who  denies  being  the 
author  of  the  criminal  act.  But  when  it  is  a  question  of  flagrant 
crime  or  of  a  confessed  misdeed,  confirmed  by  other  proof,  this 
presumption,  which  is  exclusively  in  favor  of  the  accused,  does 
not  seem  to  have  the  same  logical  or  juridical  force.  It  has  stUl 
less,  for  example,  when  the  accused  is  not  an  occasional  delin- 
quent, who  has  succumbed  for  the  first  time,  or  the  alleged  author 
of  an  occasional  misdeed  (which,  to  speak  with  greater  precision, 
is  a  case  of  evolutive  delinquency)  than  when,  on  the  contrary, 
he  is  a  recidivist,  a  professional  criminal,  or  when  the  misdeed  in 
itself,  in  its  motives  or  the  circumstances  which  surround  it, 
shows  a  born  or  insane  criminal,  and,  to  be  more  accurate,  a 
form  of  atavistic  criminaUty. 

The  presumption  of  innocence,  illogical,  when  absolute  and 
employed  without  distinction,  is  in  fact  merely  a  juridical 
aphorism,  which  has  strayed  far  from  primitive  reality,  in 
which  it  originated  by  the  process  of  mummification  and 
degeneration  of  the  "regulae  juris,"  which  Salvioli  pointed 
out,^  and  which  is  only  a  special  case  of  the  ideo-emo- 
tional  arrest  which  Ferrero  makes  the  sociological  base  of  the 
phenomena  of  symbolism  (a  process,  by  which  the  mark  and 
formula  through  constant  use  are  substituted  for  the  object  and 
idea,  which  they  primarily  contained).^    This  is  why  the  elimina- 

duction  which  Garqfalo  and  CareUi  have  written  to  their  book,  "Riforma  della 
procedura  penale  in  Italia"  (Turin,  1889),  which  contains  a  proposal  to  reform 
the  code  of  penal  procedure  according  to  the  principles  of  the  positive  school. 
Franchi,  on  the  other  hand,  developing  his  criterion  of  the  "Integration  anthro- 
pologique  de  la  procedure  penale,"  places  the  latter  in  connection  with  the  opposite 
investigation.  See  "  Proems  penal  et  anthropologic  criminelle,"  a  report  published 
in  the  "Actes  du  deuxieme  congres  d'anthropologie  criminelle,"  p.  106. 

1  Salvioli,  "GU  aforismi  giuridici,"  S.  P.  (15  August,  1871). 

*  Ferrero,  "  I  simboli  in  rapporto  alia  storia  e  filosofia  del  diritto,  alia  psicologia 
e  alia  sociologia"  (Turin,  1893). 


446  PRACTICAL  REFORMS  [§293 

tion  of  this  illogical  presumption  in  all  cases  and  stages  in  which 
it  is  in  actual  contradiction  to  the  facts  would  deprive  of  all 
foundation  other  procedural  forms,  which  are  inspired  by  it,  and 
which  are  in  fact  contrary  to  the  clearest  reasons  of  justice  and 
social  utility. 

What  reason  is  there,  for  example,  after  a  criminal  sentence 
for  some  atavistic  form  of  delinquency  has  been  rendered,  for 
prolonging  the  provisional  Uberty  of  the  accused  during  an 
appeal?  Garofalo  said  with  great  force,  "Fancy  what  efficacy 
through  intimidation  the  sentence  of  a  court  can  have,  which, 
like  the  lance  of  Achilles,  woimds  and  cures  at  the  same  time? 
With  one  hand  it  condemns,  and  with  the  other  it  permits  the 
absolute  freedom  of  the  condemned.  The  man  who  has  brutally 
and  thoughtlessly  struck  his  neighbor,  the  jealous  lover  who  has 
disfigured  some  young  girl,  the  yeggman  who  has  spread  terror 
through  his  threats  of  death,  freely  and  peacefully  go  back  to 
their  homes,  after  an  illusory  sentence,  which  will  undergo  a  long 
delay,  as  they  know  well,  because  of  an  appeal,  with  even  a  plea 
for  mercy  attached.  Their  victims  are  defenseless  before  their 
very  eyes,  in  their  power,  and  may  perhaps  have  to  repent  bitterly 
of  having  had  the  useless  courage  to  prosecute.  It  is  not  an 
unknown  thing  to  see  atrocious  vengeance  taken  during  the  slow 
course  of  justice,  and  even  when  matters  do  not  go  to  such  an 
extent,  the  moral  sense  of  the  public  is  outraged  by  the  sight  of 
a  recognized  and  declared  criminal,  following  the  even  tenor  of 
his  way,  side  by  side  with  his  victim."  ^  The  restrictions  applied 
by  law  on  the  enjoyment  of  provisional  liberty  are  no  protection 
for  social  interest,  because  they  are  governed  by  the  superficial 
criterion  of  the  kind  of  crime,  and  not  by  the  essential  criterion 
of  the  class  of  the  delinquent. 

§  293.    Equality  between  Individual  Rights  and  Social  Defense  — 
"  Non-proven." 

No  more  justifiable  or  logical  is  the  other  rule,  that  an  evenly 
divided  jury  results  in  an  acquittal,  for  this  by  a  vague  presump- 
tion of  innocence  belies  reality,  because,  while  the  vote  has  not 
been  affirmatively  in  favor  of  guilt,  it  certainly  has  not  been 
in  favor  of  iimocence.  On  this  point,  different  rules  of  procedure 
should  be  made  for  different  categories  of  delinquents.  Under 
this  head,  as  under  the  head  of  provisional  liberty,  the  system 
^  Garofalo,  "Ci6  che  dovrebbe  essere  un  giuridizio  penale,"  A.  P.  Ill,  1. 


§294]      PRINCIPLES  FOR  PROCEDURAL  REFORM  447 

actually  employed  in  regard  to  occasional  delinquents  or  those 
by  passion,  who  up  to  that  time  had  been  honest  (evolutive 
delinquency,  so  recognized  by  experts,  who  should  always,  as  we 
shall  see,  take  part  in  the  preparation  and  trial  of  a  criminal), 
should  be  used,  but  it  should  not  be  used  in  the  case  of  bom- 
criminals  or  recidivists,  that  is  to  say,  in  cases  of  atavic  delin- 
quency. In  regard  to  such  cases,  I  made  a  proposition  in  the 
first  Italian  edition  of  this  work  which  seemed  sacrilegious  to  those 
who  are  subservient  to  "a  priori"  maxims.  It  was  to  allow  the 
jury  to  give  other  verdicts  than  acquittal  or  condemnation.  In 
Scotland,  where,  however,  the  jury,  as  in  America  and  England 
answers  only  one  question,  "Is  the  accused  guilty  or  not  guilty," 
the  verdict  can  also  be  "Not  proven."  This  system  was  also 
followed  by  the  Romans,  who  had  three  verdicts,  "absolvo," 
"condenmo,"  and  "non  licet."  Tarde,^  approving  the  sentence 
and  verdict  of  "non  constat,"  wrote  with  justice  that  without 
permitting  this  national  way  of  expressing  doubt,  the  "no  con- 
demnability"  would  vary  with  every  judge;  so  that  according  to 
humors,  habits,  conventions  and  the  gravity  of  the  penalty,  in  a 
manner  differing  with  different  judges  and  juries,  doubt  would 
be  resolved  sometimes  by  conviction  and  sometimes  by  acquittal, 
without  there  ever  being  any  certainty. 

§  294.    Equality  between  Individual  Rights  and  Protection  of  Society: 
The  State's  Right  to  Appeal. 

Seeking  for  more  satisfactory  examples  of  the  equilibrium 
between  individual  and  social  rights  in  the  matter  of  procedure, 
such  as  the  positive  school  demands,  we  can  point  out  the  rule 
by  which  in  a  case  where  an  appeal  has  been  taken  by  the  accused 
alone,  the  penalty  cannot  be  increased.  If,  however,  it  is  clear 
that  the  appeal  is  based  upon  the  correction  of  possible  errors 
committed  by  the  judges  of  a  lower  court,  and  if  this  correction 
can,  as  regards  the  penal  measure,  result  in  an  augmentation  or 
diminution,  the  exclusion  of  the  possibility  of  an  alteration  in 
favor  of  the  condemned  who  brings  the  appeal  is  evidently 
illogical.  A  rule  analogous  to  the  preceding  is  that  it  does  not 
allow  a  reversal  in  the  case  of  an  acquittal.  Even  writers,  whom 
one  cannot  accuse  of  sentimentalism,  do  not  admit  of  a  revision 

1  Tarde,  "La  philosophic  p^nale,"  p.  450  (English  translation,  Boston,  1912). 
See  also  Carnevale,  "Certezza  e  dubbio,"  in  the  "Rivista  penale"  (June,  1892); 
Dorado,  "Problemas  de  derecho  penal,"  pp.  268  et  seq. 


448  PRACTICAL  REFORMS  [§295 

of  sentence  to  the  harm  of  the  accused.  Casorati  declares  that 
it  is  "bristUng  with  diflficulties  and  contrary  to  the  fundamental 
principles  of  penal  law."  ^  The  last  consideration  reduces  the 
question  to  its  most  comprehensive  and  just  terms.  The  prohibi- 
tion of  the  revision  against  the  individual  is  the  consequence  of 
the  system  which  we  desire  to  destroy.  It  considers  the  guilty, 
even  after  trial  and  sentence,  as  persecuted  victims,  whose  pro- 
tection one  must  insure  at  all  cost.  If  this  is  true  in  political 
prosecutions,  it  has  no  weight  in  the  trial  of  atavic  delinquents. 
The  reversal  of  judgments  in  favor  of  the  accused  is  a  logical  and 
necessary  correlative  to  the  similar  remedy  accorded  to  the  con- 
demned. The  accused  may  have  profited  by  false  witnesses, 
false  expert  testimony,  forgery,  intimidation,  corruption,  or 
other  illegal  means,  and  it  is  intolerable  that  he  should  tranquilly 
enjoy  the  fruits  of  such  a  crime.  He  may  have  been  acquitted 
because  the  indictment  (not  the  result  of  omniscience,  and  drawn 
up  by  information  furnished  by  the  prosecutor)  was  drawn  up 
without  access  to  a  single  document  of  weight.  An  accused 
unjustly  acquitted,  can,  in  the  teeth  of  the  jury  and  the  judge 
who  have  taken  the  matter  up  on  motion  for  a  new  trial,  cynically 
declare  his  guilt  without  fear  of  further  prosecution.^ 

§296.    Equality  between  Individual  Rights  and  Social  Protection: 

Pardons. 

The  abuse  of  pardons  aflForded  to  individuals  condemned  for 
serious  crimes  can  be  criticised  as  Lombroso  criticised  it.' 
** Malefactors,"  says  Bentham,  "in  their  ecstasies  of  crime  pre- 
cipitate themselves  on  cities  as  wolves  on  flocks  after  a  long 
fast."  Another  consequence  of  the  principle  of  equality  between 
protection  accorded  to  the  individual  who  commits  crime  and 
those  of  honest   society  is   the  rigorous  obligation  and  assured 

*  Casorati,  "II  processo  penale"  (Milan,  1881),  p.  432. 

*  Magno,  "Delia  revisione  dei  processi  penali,"  A.  P.  (1884,  V.  fasc.  2),  p.  264. 
The  Austrian  and  German  codes  (358  et  seq.)  already  permitted  revision  in  the 
cases  of  suspects.  For  individualistic  exaggerations  introduced  in  the  contrary  by 
the  classical  school  in  France,  Deputy  Boysset  presented  in  December,  1884,  a  pro- 
posal of  revision  for  cases  of  condemnation.  As  to  these  Bertheau  said,  in  "Re- 
formes  pratiques"  (Paris,  1886),  p.  34,  that,  should  the  proposal  become  law  the 
well-knowTi  maxim  would  have  to  be  changed  to  "res  adjudicata  pro  errore  habe- 
tur."  It  is  clear,  on  the  contrary  (and  this  is  my  stand),  that  the  only  remedy  is  not 
to  admit  an  absolute  presumption  of  "res  adjudicata"  in  any  conviction,  provided 
that  the  periodic  revision  of  sentences  is,  as  will  be  shown  at  a  later  point,  to  be  one 
of  the  bases  of  penal  justice  considered  only  as  a  function  of  preservative  clinic. 

'  Lombroso,  "  L'incremento  del  delitto  in  Italia,"  p.  127. 


§295]      PRINCIPLES  FOR  PROCEDURAL  REFORM  449 

execution  of  reparation  in  damage  caused  by  the  crime  to  inno- 
cent parties.  This  obligation,  which  to-day  figm*es  only  as  an 
ideal  hope  and  an  ineffectual  clause  in  penal  sentence,  must  be 
more  seriously  granted  to  those  who  have  suffered  damage.  In 
the  last  place,  to  obtain  a  greater  equilibrium  between  individual 
and  social  rights  we  can  mention  the  institution  of  penal  prescrip- 
tion which  forms  an  immunity  for  all  criminals,  while  in  justice 
it  should  only  be  admissible  for  occasional  delinquents  or  those 
through  passion,  and  forms  of  evolutive  delinquency,  above  all 
as  far  as  the  prescription  of  condemnation  is  concerned.^ 

On  the  other  hand,  the  positive  school,  for  that  very  reason, 
beheves  that  it  makes  for  a  more  rational  equality  between  indi- 
vidual and  social  rights.  It  not  only  takes  the  part  of  society 
against  the  individual,  but  also  that  of  the  latter  against  the  former. 
In  the  first  place,  the  other  propositions,  that  it  makes,  to  show 
the  characteristics  which  guarantee  the  social  duty  of  the  repara- 
tion of  wrongs,  although  directed  against  individuals  who  commit 
crime,  are  individuahstic,  because  they  are  not  made  for  the 
benefit  of  society  as  a  collective  entity,  but  rather  for  the  in- 
dividuals who  suffer  from  the  crime.  This  proves  that  classical 
individuaHsm  is  not  any  more  complete  than  the  individualism  of 
the  positive  school,  but  that  it  takes  more  concern  for  the  de- 
linquent individual  considered,  through  a  residuum  of  the  men- 
tality of  the  days  of  medieval  political  barbarism,  as  a  victim  of 
the  State.  It  does  not  even  consider  the  true  victims  of  the 
delinquent,  who  are,  however,  individuals  as  well  and  more 
worthy  of  aid  and  sympathy.  We  can  note  three  other  innova- 
tions as  principal  examples  of  the  aid  given  by  the  individual 
against  the  classical  excess  or  failure  of  the  social  power.  Two 
of  them  have  been  noticed  by  some  of  the  classical  criminologists. 
But  in  that  school  they  have  remained  in  the  state  of  develop- 
ment of  a  hoped-for  reform,  because  they  are  dissonant  in  the 
mass  of  judicial  theories.  On  the  contrary,  the  positive  school 
gives  them  an  entirely  new  value,  as  it  did  to  the  proposition 
for  asylums  for  the  criminal  insane  and  for  substitutes  for  impris- 
onment, because  it  binds  them  organically  to  a  system  of  other 
positive  propositions.  I  allude  to  popular  action  for  the  repara- 
tion of  errors  of  imprisonment,  and  to  the  reform  which  will 

^  Zerhoglio,  "Delia  prescrizione  penale"  and  "Scuola  positiva,"  1893,  p.  369; 
De  la  Grasserie,  "De  la  suppression  d'immunit^s  accord^ea  au  coupable,"  in. 
the  "Revue  penitentiaire,"  May,  1898. 


450  PRACTICAL  REFORMS  [§295 

erase  from  the  number  of  crimes  acts  which  will  only  be  considered 
thereafter  as  harm  caused  by  a  particular  individual,  and  which 
would  be  punished,  not  by  imprisonment,  but  by  what  is  more 
eflFectual,  the  reparation  of  the  damage  done. 

The  police,  like  the  institution  of  social  defense,  treated  no 
longer  as  a  private  aflFair  but  as  a  pubhc  and  social  fimction,  an- 
swers well  to  the  general  exigencies  of  sociology,  which  demands 
a  division  of  labor  even  in  collective  organisms,  and  to  the  par- 
ticular demands  of  criminal  sociology,  which  proves  that  the  social 
function  of  defense  against  crime  should  be  entrusted  to  a  special 
and  distinct  department,  not  to  be  created  henceforth  as  a  neces- 
sary institution,  even  among  those  nations,  for  example,  the 
English,  who  have  not  yet  estabUshed  it  regularly,  but  who  have 
begim  to  make  use  of  it  by  a  process  of  consolidation.  Thus  the 
abandonment  of  the  idea  of  confusing  the  district-attorney's  office 
with  the  court  of  assizes  shows  the  necessity  of  giving  it  greater 
executive  independence  (which  weighs  too  heavily  to-day  on  the 
judges  and  their  careers)  by  giving  it  a  greater  individuahty  and 
j)ower.  And  yet  the  action  of  the  district  attorney,  above  all  as 
now  constituted,  is  insufficient  to  protect  citizens  from  crime,  either 
through  an  organic  defect  of  the  personnel  insufficient  in  number, 
or  because  of  the  functional  faults  which  Gneist  ^  has  pointed  out, 
consisting,  as  it  does,  in  poUtical  affiliations,  in  other  words,  "in 
a  disposition  to  favor  the  party  in  power,"  for  they,  as  Gneist 
himself  remarks  (and  this  destroys  the  objection  of  Glaser,  who 
denies  the  possibihty  of  governmental  political  pressure),'^  have 
no  need  in  certain  cases  to  exercise  a  special  influence  by  more 
special  or  compromising  means.  The  spirit  of  preservation,  nat- 
ural to  all  departments  of  State,  or  of  the  principle  of  authority, 
which  is  a  particular  aspect  of  them,  is  sufficient  without  any 
thought  or  motive  less  plausible  of  an  interested  deference  to 
those  whose  power  controls  individual  careers.  This  is  why  it 
would  be  good  to  add  the  action  of  individuals  to  the  action  of 
the  public  authorities  (without,  however,  substituting  it)  in 
order  to  aid  the  defensive  reaction  exercised  by  the  judiciary.' 

1  Gneist,  "Vier  Pragen  der  deutschen  Strafprocessordnung"  (Berlin,  1874),  I, 
pp.  16  et  seq.     See  also  Mario  Pagano,  "Delia  prova,"  p.  62. 

*  Glazer,  "Motivi  del  codice  di  procedura  penale  austriaco,"  cited  by  Garofalo 
And  Carelli  in  "Riforma  della  procedura  jjenale"  (Turin,  1889),  p.  cviii. 

*  The  draft  of  the  Hungarian  Code  of  Penal  Procedure  (December,  1889) 
allows,  besides  subsidiary  private  action  (where  the  district-attorney  refuses  or 
abandons  a  criminal  action)  and  accessory  private  prosecution,  a  principal  private 


§§  296,  297]  PRINCIPLES  FOR  PROCEDURAL  REFORM    451 

§  296.  First  Fonn  of  Individual  Criminal  Action. 
The  exercise  of  criminal  action  by  individuals  can  take  either 
of  two  forms,  depending  upon  whether  it  is  a  right  of  the  victim 
or  of  all.  In  relation  to  the  first  form,  already  admitted  and 
regulated  by  existing  laws  among  all  civilized  people,  there  are 
many  necessary  reforms,  particularly  in  regard  to  the  right  of 
private  complaint  without  consecutive  penal  action  of  which  the 
positive  school  must  necessarily,  as  Setti  says,  call  for  the  retrac- 
tion, and  perhaps  even  abolition.^  For  while  this  right  has 
been  governed  up  to  the  present  time  by  laws  which  consider  the 
juridical  and  material  entity  of  the  crime,  it  must  also  depend 
upon  the  power  of  the  delinquent,  for  society  is  interested  in 
defending  itself  entirely  apart  from  private  complaint  against 
even  the  authors  of  slight  misdemeanors  (atavic  delinquency) 
whether  they  be  insane,  born,  or  habitual.  And  we  can  add  that 
the  necessity  of  private  prosecution  lends  itself  too  easily  to 
bargains  between  offender  and  victim,  which  certainly  does  not 
tend  to  elevate  the  moral  and  juridical  feeling  of  the  public.  On 
the  other  hand,  this  action  of  the  offended  citizen  must  be  re- 
formed in  the  exercise  of  rights  which  concern  him  as  an  interested 
party  in  penal  judgment  and  as  a  guarantee  against  the  negligence 
or  possible  malfeasance  of  the  district-attorney,  who,  while  he  is 
obliged  to  receive  every  complaint  and  denunciation,  is  (in  Italian 
and  French  law,  though  not  ia  Austrian  and  German  law)  arbiter 
of  the  penal  suit,  and  consequently  of  all  suits  in  response  to 
individual  complaints.  But  a  citizen  who  believes  himself  harmed 
by  a  misdeed,  must  he  obey  this  sentence  which  is  not  that  of  a 
judge?  Hence,  the  idea  of  a  subsidiary  accusation  on  the  part 
of  the  victim,  an  idea  which,  already  admitted  in  Austria  and 
Germany,  and  in  the  proposed  Hungarian,  Belgian,  and  French 
codes  with  variations  with  which  we  need  not  concern  ourselves 
here,  represents  a  true  and  serious  protection  for  the  individual 
against  the  social  power. 

§  297.     Second  Form  of  Individual  Criminal  Action. 

The  second  form  of  private  accusation  lies  in  the  popular 

action,  and  is  a  national  tradition  among  the  Latin  people,  for 

action,  with  essential  cooperation  by  the  State,  in  cases  of  slander,  ofifenses  against 
honor,  petty  assaults,  and  housebreaking. 

1  Setti.  "L'azione  privata  e  la  scuola  positiva,"  R.  C.  (1888),  XVIII,  fasc.  5; 
GarofaLo,  " Criminalogia  "  (English  translation,  Boston,  1914). 


452  PRACTICAL  REFORMS  [§298 

it  is  one  of  the  institutions  of  Roman  Law,  which,  without  doubt, 
was  introduced  with  exaggeration  and  by  force  in  the  civil  domain 
but  which  desires  on  the  other  hand  in  the  criminal  domain  to 
be  justified  by  the  accusation,  which  Carrara  has  formulated, 
saying  with  the  approbation  of  the  classicists,  that  the  Romans, 
"giants  in  civil  law,  were  pygmies  in  penal  law."  Rudoph 
Gneist,  with  this  special  point  in  view,  proposed  to  introduce 
into  penal  procedure,  popular  action  against  electoral  crimes, 
crimes  of  the  press,  attempts  against  right  of  assemblage  and 
association,  and  slander  of  public  officers.  But  these  are  not 
the  only  cases  where  contemporary  pubUc  life  can  require  popular 
penal  action.  We  will  not  take  up  here  the  practical  organization 
of  this  institution.  It  is  sufficient  to  have  mentioned  it  as  one 
of  the  reforms  advanced  by  the  positive  school  to  realize  in  the 
penal  law  a  better  equiUbrium  between  the  rights  and  protection 
of  individuals  and  those  of  society. 

§  298.  Reparation  to  a  Man  Unjustly  Convicted. 
Among  the  principal  propositions,  which  the  positive  school 
advances,  the  second  is  reparation  for  the  individual  unjustly 
condenmed  or  prosecuted,  for  the  judicial  errors  committed  in 
the  name  of  society.  This  reform,  like  the  prior  one,  finds  numer- 
ous followers  in  the  classical  school,  but  we  cannot  but  fear  that 
it  will  remain  in  the  state  of  a  platonic  promise;  for  as  it  is  facili- 
tated by  the  restriction  of  prisoners  so  freely  doled  out  to-day, 
and  by  the  more  frequent  use  of  pecuniary  reparation  in  the  form 
of  fines  or  indemnities,  it  finds  constantly  much  more  favorable 
conditions,  and  much  greater  probabiHties  of  practical  realization 
applied  on  certain  special  questions  in  the  repressive  system  of 
the  positive  school.  Applied  in  certain  special  cases  as  an  excep- 
tional measure  since  1600,  for  example,  by  the  Parliament  of 
Toulouse,  and  within  the  last  hundred  years  by  the  English 
Parliament,  the  reparation  of  judicial  errors  has  been  imposed, 
particularly  in  France  about  the  year  1700,  as  a  consequence  of 
unjust  capital  pimishment.  This  led  Voltaire  and  Beccaria  to 
demanded  the  abolition  of  the  death  penalty. 

In  1781,  the  "Societe  des  Arts  et  Belles-Lettres"  of  Chalons-sur- 
Mame  proposed  the  reparation  of  judicial  errors,  as  a  subject  of 
debate  and  gave  the  prize  for  the  best  pamphlet  to  Brissot  de 
Warville  for  his  "Le  sang  innocent  venge."  The  Cahiers  for  the 
Convocation  of  the  States  General  contain  many  affidavits  in  favor 


§298]       PRINCIPLES  FOR  PROCEDURAL  REFORM  453 

of  this  reform,  which  Louis  XVI  presented  to  the  States  General 
on  the  eighth  day  of  May,  1788.  In  1790,  Duport  proposed  such 
a  law  to  the  Constituent  Assembly,  which  voted  against  it,  how- 
ever, in  February;  it  was  attacked  by  certain  objections,  practi- 
cal ones  generally  speaking,  which  every  one  has  been  contented 
to  repeat  for  a  century.  The  Convention,  however,  decreed 
special  reparation  in  particular  cases,  like  that  of  the  thousand 
francs  awarded  in  1793  to  a  certain  Busset  for  having  been  "arbi- 
trarily detained  and  prosecuted."  In  1823  the  Societe  of  Chalons- 
sur-Marne  again  took  up  the  matter  which  has  since  been  the 
subject  in  France  of  propositions  of  legal  reform,  viz:  in  1867,  when 
Richard  and  OUivier  discussed  the  revision  of  process  under  the 
amendment  presented  by  Jules  Favre,  and  again  in  1883,  on  the 
proposition  of  Deputy  Pievre,  and  in  June,  1890,  on  that  of 
Deputy  Reinach,  until  finally  the  law  of  1895  was  passed.^ 
Among  the  writers  who  have  upheld  it  are  Necker,  in  his  mono- 
graph on  finances  in  France,  Pastoret,  Voltaire,  Bentham,  Merlin, 
Legraverend,  Helie,  Tissot,  and  above  all,  Bonneville  de  Marsangy, 
in  his  book  on  the  betterment  of  criminal  law,^  where,  besides 
this  reform,  he  proposes  many  others,  which  we  have  seen  again 
advanced  in  the  last  few  years,  for  the  substitution  of  other  pimish- 
ments  for  that  of  imprisonment  for  a  short  period.  The  crimi- 
nologists who  have  sustained  it  are,  among  others,  Carrara,  Brusa, 
Pessina,  Geyer,  Schwarze,  and  Prius.  More  recently,  Garofalo 
defended  it  in  his  report  on  this  subject  to  the  Third  National 
Juridical  Congress  in  Florence  in  September,  1891.  As  to  existing 
statutes,  the  reparation  of  juridical  errors  —  whether  limited  to 
those  who  have  been  found  innocent  on  appeal,  or  extended  to  the 
accused  who  are  subsequently  acquitted  —  was  admitted  by  the 
penal  codes  of  Hungary,  Mexico,  and  Brazil,  and  by  the  codes  of 
criminal  procedure  of  Norway  and  Canton  of  Tessin,  and  in 
Switzerland,  by  the  Cantons  of  Freebourg,  Vaud,  Neuchatel, 
Geneva  and  Bale-ville  and  Berne.  There  are  also  special  laws 
providing  for  it  in  Portugal,  Switzerland,  Denmark,  Austria, 
Iceland,  Belgium,  France,  and  Germany.*  The  juridical  principle, 
that  the  State  should  repair  the   material  and  moral  damage 

1  See  the  "Scuola  positiva"  (February,  March,  1904)  for  the  present  state  of 
German  legislation,  which  adds  reparation  for  the  innocent  held  for  trial  to  that 
for  the  innocent  arrested.  For  Italy,  in  Lucchini's  plan,  which  deals  only  with 
the  accused  not  held  for  trial.  *  1864. 

3  1884,  1886,  1888,  1892,  1893,  1894,  1895,  1898  respectively.  The  texts  of 
these  acts  can  be  found  in  the  "Revue  p^nitentiaire "  (1894),  p.  806. 


454  PRACTICAL  REFORMS  [§299 

caused  by  its  officials,  whether  intentional  or  unintentional,  to  such 
citizens  as  have  done  nothing  to  expose  themselves  to  process  or 
condemnation,  cannot  be  seriously  questioned.^  The  entire  diffi- 
culty is  reducible  to  two  points,  —  first,  in  what  cases  should 
the  right  to  such  reparation  be  allowed?  And  second,  by  what 
financial  methods  can  the  State  fulfill  this  duty?  As  to  the  cases 
where  reparation  must  be  admitted;  it  seems,  first  of  all,  that 
they  should  include  those  where  the  condemned  are  found  uuio- 
cent  by  a  reversal  of  the  judgment  (with  the  necessary  reforms 
indicated  above  in  this  particular^),  and  those  who  have  been 
prosecuted  imjustly.  In  the  latter  case,  indemnity  should  be 
restricted  to  those  who  have  been  released  or  acquitted  because 
the  act  was  not  a  crime,  or  because  they  had  taken  no  part  in 
the  crime.  Hence,  another  confirmation  of  the  necessity  of  the 
verdict  of  "not  proven,  in  order  to  distinguish  true  acquittals 
from  those  which  are  doubtful." 

§  299.     Abolition  of  Certain  Crimes. 

The  third  proposition,  which  the  positive  school  advances 
on  its  own  initiative,  but  which,  on  the  one  hand,  is  connected  in 
the  spirit  moving  it  with  the  provisions  of  the  penal  code,  and 
the  new  theory  and  doctrine  of  the  reparation  of  damages  (with 
which  we  shall  deal  later  on,  and  which  Puglia '  was  among  the 
first  to  adopt)  is  to  abolish  from  the  number  of  crimes  a  large 
series  of  acts  committed  by  occasional  delinquents,  or  com- 
mitted either  through  neglect  or  carelessness  by  men  morally 
normal,  whom  Lombroso  called  "pseudo-criminals,"  and  which 
entail  but  little  damage.  In  these  cases,  the  crime  not  having 
been  committed  by  malice,  or  the  damage,  public  or  private, 
being  very  sUght  (either  because  of  the  act  itself  or  because  of 
the  character  of  the  agent,  not  a  dangerous  man),  it  is  iniquitous 
and,  in  fact,  useless  to  inflict  an  imprisonment  which  arouses  in 
the  public  conscience  pity  for  the  condemned,  or  inflicts  upon 

'  Among  the  few  opponents,  see  Worms,  "De  I'etat  au  regard  des  erreurs 
judiciaires"  ("Extrait  des  'Comptes  rendus  de  I'academie  des  sciences  morales 
et  politiques' ")  (Paris,  1884),  and  in  a  less  positive  manner,  Camoin  de  Vence, 
"Des  indemnites  aux  victimes  d'erreur  judiciaire,"  in  the  "Revue  penitentiaire" 
(March,  1884).  Contra,  see,  above  all,  the  monograph,  which  has  already  been 
cited,  "De  I'indemnite,"  by  Pascaud  (Paris,  1884). 

«  Ante. 

*  Puglia,  "La  psico-fisiologia  e  rawenire  della  scienza  penale,"  A.  P.  (1832), 
and  M.  D.  P.  (Naples,  1890),  I,  132. 


§299]       PRINCIPLES  FOR  PROCEDURAL  REFORM  455 

him  a  laughable  detention  of  a  day  or  so,  lacking,  of  course,  all 
remedial  effect. 

These  acts  should  be  withdrawn  from  the  scope  of  penal 
code  and  become  simply  torts,  or  quasi-torts.  In  other 
words,  they  should  entail  an  exact  and  rigorous  reparation  in 
damages;  a  punishment  not  as  illusory  as  a  detention  for  a  day 
or  so;  not  repugnant  to  public  conscience,  and  productive  of  a 
more  efficacious  effect  upon  the  authors  of  the  damage  who  would 
thus  be  made  to  actually  repair  the  harm  that  they  had  done. 
The  theory  of  absolute  justice  cannot  concern  itself  with  such 
trivial  offenses,  which,  however,  constitute  two-thirds  of  the  every- 
day life  of  justice  in  the  law  courts;  because  in  the  latter  slander 
or  the  theft  of  an  apple  must  be  met  with  its  proportionate  punish- 
ment as  well  as  a  murder.  But  the  positive  school,  which,  on  the 
contrary,  regards  the  real  conditions  of  social  life,  deals  with  the 
necessity  of  disembarrassing  codes,  courts,  and  jails  of  these 
infinitely  petty  matters  of  the  criminal  world  by  suppressing 
detention  for  what  Venturi  and  Turati  happily  called  the  "mini- 
mum quota  of  delinquency,"  and  by  freeing  it  from  prohibitions 
and  penalties  which  imprison  without  pity  those  who  commit 
slight  misdemeanors  and  delinquencies,  while  remaining  only  too 
elastic  for  the  most  dangerous  malefactors. 


CHAPTER  in 

THE  MACHINERY  OF  PENAL  JUSTICE  AND  ITS  ACTUAL 
CHARACTER 

The  proper  duty  of  a  penal  judgment  —  the  preparation  of  the  case  (judicial 
police)  — pleadings  (accusation  and  defense)  — trial  (the  judge  and  jury). 
The  criminal  clinic  — civil  and  criminal  judges  —  intelligence  and  inde- 
pendence of  judges  —  their  election  —  powers  of  the  judge. 

§  300.    The  Characteristics  of  Penal  Judgment. 

The  immense  social  mechanism  which  is  called  penal  justice 
is  divided  into  the  judiciary  police,  the  judges,  and  a  jury,  the 
judgment,  the  execution,  and  the  aftermath  of  the  execution. 
Before  dissecting  the  organization  according  to  the  scientific 
conception  of  the  criminal  phenomenon  as  a  symptom  of  in- 
dividual or  social  pathology,  as  we  propose  to  do,  it  will  be  well 
to  state  the  general  actual  characteristics,  which  are  the  product, 
on  the  one  hand,  of  the  double  function  exercised  by  penal  justice 
as  social  defense  (against  atavic  criminahty)  and  as  class  defense 
(against  evolutive  criminahty),  and  on  the  other  hand,  of  the 
ethico- juridical  spirit  of  distributing  justice,  which  the  classical 
doctrine  of  crimes  and  penalties  has  left  to  the  criminal  courts 
as  a  survival  of  its  primitive  and  barbarous  phases,  let  us  take  up 
the  characteristics  in  turn. 

§  301.  Impersonality. 
The  criminaUsts,  law-makers,  and  judges  consider  that  the 
cycle  of  justice  has  three  terms:  the  crime,  the  judgment, 
and  the  penalty.  The  classical  school  does  not  recognize 
the  delinquent,  who  is,  however,  both  the  initial  and  final 
term  of  social  defense  against  criminality.  In  the  same  way, 
the  doctors  of  days  gone  by  recognized  only  three  objects  for 
study:  the  malady,  the  diagnosis,  and  the  treatment,  —  and 
forgot  entirely  the  initial  term,  the  patient.  Except  in  certain 
exceptional  circumstances,  the  delinquent  is  most  in  evidence 
and,  therefore,  recognized  by  the  codes  (for  example,  in  cases 
where  he  is  a  minor,  a  deaf  mute,  insane,  drunk,  or  swayed  by 
passion).     Neither  the  laws  nor  the  judges  are  concerned  with 

456 


§302]  MACHINERY  OF  PENAL  JUSTICE  457 

the  bio-psychic  and  social  personahty  of  the  accused;  and  yet, 
it  is  in  this  that  the  natural  determinism  of  the  crime  is  found 
operative.  Consequently  therein  the  criterion  lies,  which  makes 
it  possible  to  prevent  its  repetition  by  the  same  individual,  and 
to  attain  his  readaptation,  if  it  is  possible,  to  social  life.  In  fact, 
the  defendant  is  only  a  living  manikin  on  which  the  judge  fastens 
a  number  of  a  certain  statute,  considering  only  a  penal  dose 
which  should  be  proportionate  to  the  moral  fault  that  he  believes 
is  found  in  the  accused.  He  becomes  simply  a  numbered  autom- 
aton during  the  execution  of  his  penalty,  thus  presenting  the 
absurd  and  demoralizing  contrast  of  the  person  who  lives,  breathes, 
and  has  his  being,  while  lost  and  submerged  in  the  nameless 
crowd  of  convicts.  Hence  the  problem  of  the  individual 
—  legislative,  judicial,  and  administrative  —  of  punishment, 
which,  in  an  excessive  reaction  against  this  impersonality  of 
existing  penal  justice,  represents  an  ideal  impossible  of  realization 
until  the  entire  attitude  of  social  defense  against  crime  shall  be 
radically  changed,  but  which  certainly  shows  —  like  the  indi- 
vidual treatment  for  every  sick  or  insane  patient  —  the  end  which 
must  be  reached  through  the  anthropological  classification  of  the 
diverse  types  of  delinquents. 

§  302.  Characteristics  of  Penal  Judgment:  Judicial  License. 
Under  the  confused  mass  of  the  thousand  formalities,  some 
essential,  some  superfluous,  many  often  absurd,  and  in  spite  of 
the  good  intentions  of  the  representative  of  justice,  the  spirit 
of  penal  justice,  from  the  moment  when  the  police  begins  its 
examination  until  the  execution  of  the  judgment,  both  in  the 
material  guilt  of  the  accused  (as  the  author  of  the  criminal  act) 
and  in  the  dosimetry  of  his  moral  culpability,  judicial  license  is 
always  active.  By  judicial  license  is  meant  a  certain  inspiration, 
which  is  seen  not  only  in  the  initiative  of  the  district-attorney's 
office,  but  also  in  the  monosyllabic  verdict  of  the  jury  and  the 
sentence  of  the  judge  based  on  reasons  for  the  sentence  (a  proce- 
dural guarantee,  against  which,  in  the  year  1800,  despite  the 
eloquence  of  Filangieri,  the  judges,  rebellious  at  any  innovation, 
raised  great  objection)  simply  adding  a  more  or  less  laconic  and 
stereotyped  argument  to  the  positive  period  of  the  sentence 
already  formulated  in  the  mind  of  the  judge  by  "intimate  con- 
victions." For  every  one  knows  that  not  only  verdicts,  but  also 
sentences  are  more  often  than  not  determined  by  reasons  not 


458  PRACTICAL  REFORMS  [§  302 

brought  out  in  the  arguments  before  the  court,  and  which  are 
found  in  some  secondary,  lateral,  and  unforeseen  circumstance, 
and  are  not  formulated  in  the  statutes  or  shown  by  the  pleadings. 
This  is  seen  in  the  abominable  habit  which  has  been  formed,  at 
least  among  Italian  judges,  of  giving  after  the  argument  only 
the  dispositive  part  of  the  sentence,  and  developing  the  reasons 
some  days  later  in  suiting  them  to  the  reasons  for  new  trial  or 
appeal  which  have  been  offered  by  the  defendant,  in  order  to 
render  them  ineffective. 

Thus  it  is  that  in  the  normal  procedure  of  English  courts 
tlie  judges  (who  in  other  matters  are  the  best  in  Europe) 
pronounce  their  sentences  without  giving  their  reasons,  or,  at 
least,  without  inscribing  them,  and  they  dictate  them  to 
the  court  clerk  only  when  required  to  do  so  by  the  defendant  or 
his  counsel.  Thus,  entirely  apart  from  political  influences,  which 
exert  a  direct  or  indirect  influence  on  penal  justice,  especially 
when  class  interests  are  involved,  the  old  dictum  "habent  sua 
sidera  htes"  is  true,  although  we  must,  in  our  day,  substitute  for 
the  fatal  influence  of  the  planets  another  influence  superior  to 
the  ill-will  and  good  intentions  of  the  judges  —  the  orientation 
of  penal  justice.  For  this,  in  the  examination  of  material  proofs, 
has  no  guide  other  than  the  empiric  inspiration  of  intimate  con- 
viction and,  to  measure  responsibility,  it  is  related  only  to  a 
proportion  between  punishment  and  chastisement,  between 
crime  and  penalty,  which  is,  in  fact,  a  false  convention,  because 
no  criminalist,  legislator,  or  judge  has  ever  been  able  to  fix  the 
absolute  criterion  of  this  proportion,  which  has  been  declared 
impossible  of  realization  (apart  from  arbitrary  and  sentimental 
impressions  leading  to  declarations  that  a  penalty  is  too  severe 
or  too  slight)  by  criminalists  themselves,  when  they  are  sincere, 
as  for  example,  by  Conforti,  EUero,  and  Antisa.  Penal  justice 
is  to-day,  in  this  regard,  in  the  same  primitive  and  empiric  period 
as  the  empiric  medicine  of  savage  humanity,  or  of  the  ignorant 
classes,  when  the  diagnosis  of  the  malady  is  confined  to  the  pro- 
phetic inspiration  of  the  doctor,  who  is,  at  the  same  time,  sorcerer 
and  priest,  and  where  the  treatment  of  the  patient  is  looked  upon 
as  the  exorcism  of  evil  spirits  which  his  sins  have  attracted  to  his 
body.  Hence,  in  penal  justice,  a  scientific  diagnosis,  founded  on 
the  study  of  the  bio-social  personality  of  the  criminal  and  a  posi- 
tive therapeusis,  consisting  in  measures  useful  to  his  social  re- 
adaptation,  must  be  taken  up  and  followed. 


§303]  MACHINERY  OF  PENAL  JUSTICE  459 

§  303.    Characteristics  of  Penal  Judgments :  Lack  of  Organization. 

In  place  of  continuity  and  solidarity  in  regard  to  the 
single  end  to  be  attained  —  social  defense  from  the  disease  of 
crime  —  there  is  the  most  complete  and  absurd  lack  of 
organization  in  the  machinery  of  penal  justice.  Once  a  crime 
has  been  discovered,  the  judicial  police  acts  on  its  own 
account,  and,  until  it  has  put  in  the  hands  of  the  committing 
magistrate  the  sum  of  material  proofs  (against  persons  unknown, 
or  the  supposed  author  of  the  crime),  it  does  not  concern  itself 
with  what  will  be  the  consequence  of  its  hypotheses,  researches, 
and  "ex  parte"  proofs,  except,  perhaps,  in  some  notorious  case 
which  excites  the  curiosity  or  conceit  of  the  officers  charged  with 
the  preliminary  investigations.  As  a  distinct  department,  the 
judicial  police  works  alone  and  apart,  without  any  relation  of 
organic  continuity  with  the  other  bureaus  through  which  the 
person  of  a  delinquent,  hypothetical,  or  proved,  must  pass  for 
disposition.  It  is  the  same  with  the  committing  magistrates, 
who,  apart  from  the  question  of  the  vast  amount  of  daily  work 
as  well  as  of  the  negligence  and  carelessness  in  the  choice  of  per- 
sonnel, have  only  time  to  go  over  the  skeleton  of  proof  and  suppo- 
sitions given  to  them  by  the  judicial  pohce,  and  to  review  and 
transmit  it,  in  turn,  to  the  trial  judges. 

The  latter  are  forthwith  influenced  by  the  presumptions  of  the 
written  case  and  the  results  of  the  oral  debates.  They,  too,  are  con- 
demned to  uphold  the  representatives  of  the  judiciary  police,  whom 
the  district-attorney  has  summoned  as  witnesses,  without  a  thought 
that  their  depositions  lack  the  first  condition  of  credibility,  which 
the  classical  doctrines  themselves  established  for  every  witness 
(that  is  to  say,  disinterestedness).  For  these  agents  are  always 
personally  interested  in  the  case,  if  only  through  professional  pride 
and  the  exigencies  of  their  profession,  without  considering  the  ori- 
gin of  the  scaffold  of  suppositions,  inductions,  and  interpretations 
of  facts,  and,  what  is  worse,  without  considering  whether  they 
have  a  personal  interest,  as  in  cases  of  resistance  to  the  police, 
where  the  witness  and  victim  are  the  same.  But  over  and  above 
all  this,  as  soon  as  the  judge  or  jury  has  pronoimced  the  verdict 
of  guilty,  or  not  guilty,  according  to  intimate  convictions,  there  is 
no  further  knowledge  of  the  effects  of  the  sentence.  The  person 
whom  he  has  judged  is  lost  in  the  vast  arena  of  the  outside  world, 
or  of  the  prison,  and,  save  in  exceptional  notorious  cases,  the  judge 


460  PRACTICAL  REFORMS  [§303 

is  ignorant  whether  the  acquitted  has  later  proved  by  his  conduct 
that  he  deserved  the  favorable  interpretations  given  to  the  facts 
for  or  against  him,  or  if  the  condemned  has  been  found,  in  paying 
his  penalty,  worthy  of  mercy  or  of  the  inexorable  punishment 
which  has  overtaken  him  at  the  fugitive  moment  when  he  has 
passed,  more  shadow  than  man,  before  the  kinetoscopic  penal 
justice.  During  the  execution  of  his  penalty  the  administration 
of  the  penitentiary  can  know  nothing  of  the  physical  and  moral 
person  of  the  numbered  automaton  who  swells  the  total  on  the 
list  of  entries  and  discharges.  The  number  of  the  statute  affixed  by 
the  judge  to  the  shoulder  of  this  living  manikin  is  always  the  only 
docimient  which  tells  the  jailer  of  the  personality  of  the  condemned. 
On  the  morrow  of  his  discharge,  not  one  among  those  who  have 
carried  out  the  condemnation  is  concerned,  or,  if  he  would,  could 
be  concerned,  with  the  effects  that  the  punishment  imdergone  has 
produced  on  the  person  of  the  condemned,  or  what  aptitudes 
it  has  given  or  taken  away  from  his  capabiUty  for  readaptation  to 
a  social  life.  Of  course,  I  do  not  speak  of  the  cases  where  police 
surveillance,  increasing  the  sentence  of  imprisonment,  again 
takes  the  freed  convict  in  its  redoubtable  hands  and  (entirely 
apart  from  the  ill-will  of  the  police  officer  who,  either  through 
choice  or  through  the  abuse  of  discretion  in  making  appointment,  is 
not  trained  to  his  duty)  fatally  draws  him  back  forever  in  the  lamen- 
table circle  of  recidivity  and  chronic  and  habitual  delinquency. 

The  result  of  all  this  is,  that  while  the  elementary  rule  of  life, 
constant  and  inexorable  as  it  is,  forces  every  man  to  learn  by  the 
consequences  of  his  acts  to  direct,  discipline,  and  improve  his 
conduct,  the  machinery  of  penal  justice  or  the  officials  who 
control  it  act  each  for  himself  without  knowledge  and  without 
being  able  to  regulate  the  good  or  bad  results  of  their  own  initia- 
tive and  activity.  It  is  as  if  the  superintendent  of  a  hospital 
undertook  to  direct,  by  chance,  every  patient  to  such  or  such  a 
ward,  diagnosing  him  by  intimate  conviction  and  general  appear- 
ance; as  if,  within  the  hospital,  the  internes,  doctors,  and  sur- 
geons took  charge  of  the  patients,  each  applying  his  own  syecial 
treatment  and  limited  by  his  own  knowledge,  without  concerning 
himself  with  what  his  predecessor  had  done  or  with  what  would 
become  of  the  patient  when  he  had  passed  from  his  hands  into 
those  of  others;  without  any  unity  of  diagnosis  and  treatment 
deduced  from  the  conditions  of  the  patient,  as  a  guide  to  cure 
those  who  left  the  establishment. 


§304]  MACHINERY  OF  PENAL  JUSTICE  461 

§  304.    Characteristics  of  Penal  Judgments:  Their  Impotence. 

Furthermore,  the  actual  organization  of  penal  justice,  present- 
ing these  characteristics  to  a  greater  or  less  degree  in  all  civilized 
countries,  shows  no  result  save  the  powerlessness  of  this  same 
justice  to  remedy  criminality.  Just  as  such  disorder,  as  we  have 
represented  in  the  hospital,  could  have  no  other  result  than 
excessive  and  increasing  mortality  from  which  only  a  small 
number  of  subjects  endowed  with  exceptional  organic  vigor  or 
extraordinary  constitution  would  escape,  so  a  similar  disorder 
and  lack  of  organization  in  penal  justice  can  result  only  in  the 
impotency  of  social  defense  against  criminaUty.  The  only  indi- 
viduals who  escape  it  or  its  effects  are  those  who  are  favored  by 
particular  personal  or  social  conditions;  while,  as  we  have  seen, 
delinquency  increases  with  an  obstinate  persistence,  or  grows 
more  poisonous  through  the  progress  of  recidivity.  This  is  the 
reason  that  criminal  statistics  show  (apart  from  real  criminality, 
that  is  to  say,  the  number  of  crimes  committed)  a  difference  of 
sixty-five  per  cent,  between  known  criminaUty  (crimes  discovered 
and  unpimished)  and  legal  criminaUty  (of  which  the  authors  are 
known  and  punished).  To  this  number  we  must  add  the  more 
or  less  scandalous  failures  of  punishment,  due,  as  far  as  a  certain 
number  of  crimes  and  criminals  are  concerned,  to  the  intervention 
of  the  interests  of  the  dominant  class  in  the  administration  of 
penal  justice.  This  justice  is  not  only  powerless  to  defend  society 
against  delinquents,  but  even  to  protect  their  victims. 

Reparation  for  the  damage  done  by  crime  is  to-day  a  mere 
formula  added  to  the  sentence  of  imprisonment  and,  to  be  of 
any  serious  effect,  it  must  be  taken  before  a  civil  court  with  the 
interminable  and  costly  delay  of  such  a  suit.  The  State,  on  the 
contrary,  pays  the  price  of  its  negligence  and  impotency,  since, 
while  demanding  a  tax  from  honest  citizens  for  protecting  them 
from  crime  through  the  services  of  the  police  and  penal  courts,  it 
ends,  when  it  has  not  foreseen  the  crime  in  time  to  stop  it,  by 
still  paying  for  its  negligence  to  the  delinquents  in  the  form  of 
punishments  and  awards.  And  this  is  why  —  in  the  face  of  this 
organic  powerlessness  of  penal  justice,  a  necessary  consequence  of 
its  false  moral  basis  and  complete  practical  disorganization  which 
renders  the  good  will  of  its  functionaries  useless  —  we  find  such 
phenomena  of  sickness  and  decay  as  private  detective  agencies 
(Pinkerton),  which  often  exceed  all  bounds  in  their  efforts  to  give 


462  PRACTICAL  REFORMS  [§305 

satisfaction  to  their  employers,  lynchings,  subsidized  robbery  by 
large  concerns  in  order  to  protect  themselves  against  petty  thefts 
and,  finally,  the  existence  of  bandits,^  There  are,  therefore,  not 
only  theoretical  reasons  based  on  the  scientific  study  of  crime,  but 
also  practical  reasons  of  daily  experience,  requiring  a  new  basis  for 
the  administration  of  penal  justice  in  its  different  departments 
and  its  discarding  of  empiricism  and  the  spirit  of  expiation  and 
vengeance,  with  which  it  is  still  debased  and  paralyzed,  in  order 
that  it  may  be  organized  and  governed  according  to  the  experi- 
mental data  of  criminal  anthropology  and  sociology. 

§  305.  Proper  Duty  of  a  Penal  Judgment. 
The  reforms  which  the  positive  school  proposes  in  penal  judg- 
ment are  one  with  the  fundamental  principle  already  established.^ 
The  social  punitive  function,  lacking  entirely  the  ethical  character 
of  an  expiation  for  the  fault  by  chastisement  and  having  only 
the  social  character,  a  defensive  dynamic,  a  penal  judgment, 
after  the  material  culpability  of  the  accused  has  once  been  proved, 
far  from  being  measured  by  the  illusive  moral  responsibility  of 
the  delinquent,  must  first  be  determined  by  the  anthropological 
category  to  which  he  belongs,  and  then  by  the  degree  of  social 
temibihty  and  readaptability  that  he  presents.  The  first  and 
fundamental  inquiry  in  a  penal  case  under  the  new  scientific 
principles  would  consist,  therefore,  in  proving  whether  the  accused 
is  the  author  of  the  crime  alleged,  and  in  determining  the  sur- 
roundings and  circumstances  of  the  act.  Here,  as  is  the  case 
today,  the  arguments  between  the  prosecution  and  the  defense 
would  take  place.  This  would  be  the  first  condition  of  every 
judgment. 

If  the  causal  relation  between  the  agent  and  the  act  were 
proved,  then,  as  I  have  said,  the  accused  would  either  show 
that  the  motives  which  led  him  to  this  act  were  legitimate 
and  thus  establish  the  only  case,  according  to  our  opinion,  in 
which  he  could  demand  an  acquittal,  or  else  the  determinate 
motives  would  be  proven  anti-social  or  anti- juridical.  There 
would  be  no  more  fantastic  and  often  grotesque  duels  in  which 
an  acquittal  is  sought,  no  matter  what  the  psychologic  or  psycho- 
pathologic  conditions.  Only  one  question  would  remain:  To 
what  anthropological  category  does  the  accused  belong.'     Conse- 

^  For  examples,  Tiburzi  in  Tuscany  and  Varsalona  in  Sicily. 
«  See  P.  m,  ante. 


§305]  MACHINERY  OF  PENAL  JUSTICE  463 

quently,  at  this  point,  a  new  possible  argument  between  the 
prosecution  and  the  defense  would  arise  to  establish  the  personal 
and  real  qualities  determining  whether  the  delinquent  should  be 
held  insane,  incorrigible  from  birth,  habitual,  occasional,  or 
swayed  by  passion.  We  may  also  note  that  this  discussion  by 
the  prosecution  and  defense  would  be  very  different  from  the 
bouts  of  eloquence  which  to-day  make  criminal  trials  resemble 
theatrical  representations.  There  would  be  no  more  trickery, 
no  more  harangues,  no  more  judgments  stolen  by  prayers  for 
sympathy,  but,  on  the  contrary,  judgments  determined  by  calm 
and  clear  reasoning.  There  would  be  no  procedural  subterfuges 
which  make  the  declaration  of  innocence  or  the  suspension  of 
sentence  depend  rather  upon  the  cleverness  of  the  attorney  than 
on  the  true  facts  of  the  case,  and  which  make  the  people  lose 
confidence  in  the  administration  of  justice.  There  would  be 
instead  an  absolutely  scientific  discussion  of  symptoms  presented 
by  the  delinquent,  the  circumstances  which  preceded,  accompanied, 
and  followed  the  act,  and  their  anthropologico-social  significance, 
followed  by  a  deliberation  as  to  which  of  all  the  defensive  means 
would  be  best  fitted  and  most  just  in  the  case  before  the  court. 
This  would  result  in  the  diminution  as  much  as  is  humanly  possi- 
ble of  the  effect  of  chance  in  the  criminal  courts,  where  prosecu- 
tions to-day  amount  to  mere  gambling  as  to  both  the  delinquent 
and  society.  Then,  at  last,  justice  would  be  truly  calm  and 
severe,  and  would  be  neither  a  shameful  lesson  in  crime  nor  a 
demoralizing  spectacle  of  ignorant  judges,  aggressive  prosecutors, 
and  declamatory  advocates,  turning  every  one  by  force  of  their 
intuitions  and  their  personal  magnetism,  guided  by  no  scientific 
criterion  concerning  the  only  true  judicial  problem,  which  must 
be  a  living  problem  of  psychology  or  sociology  in  the  person  of 
the  defendant,  and  not  a  sophistical  and  declamatory  edifice  of 
complicated  rules  on  crimes  considered  as  abstract  juridical 
entities.^  Crime  would  still  continue  to  be  submitted  to  penal 
justice,  even  under  the  positive  school;  but  the  fact,  in  place  of 
being  the  exclusive  preoccupation  of  the  judge,  would  only  be 
the  necessary  condition  for  proceeding  against  its  author,  and  one 
symptom,  among  many  others,  of  his  social  readaptability  accord- 
ing to  the  anthropological  category  to  which  he  belongs. 

It  would  be,  therefore,  the  delinquent  who,  after  his  crime,  would 

*  See  on  an  analogous  subject,  Richard,  "La  discussion  judiciaire  et  l'6tat  du 
droit,"  in  the  "Revue  philosophique"  (November,  1894). 


464  PRACTICAL  REFORMS  [§  306 

be  judged,  and  it  would  not  be  the  crime  against  which  a  penalty 
was  decreed,  while  the  accused  was  only  considered  in  a  secondary 
manner  as  the  living  point  of  application  of  a  "regula  juris," 
scholastically  stated  by  the  judge,  and  then  abandoned  in  its 
practical  execution  to  the  chance  of  a  thousand  circumstances, 
dilatory  or  eliminatory,  ignored  by  the  judge  himself,  and  entirely 
foreign  to  the  delinquent  and  his  crime.  To  gather,  discuss,  and 
judge  the  evidence,  as  soon  as  the  pretense  of  measuring  the 
moral  culpabihty  of  the  accused  has  been  eliminated,  will  be 
the  whole  organism  of  the  penal  process.  Yet,  these  three  acts 
are  less  considered  by  the  classical  school,  which  much  demands 
protection,  more  or  less  illusory,  of  procedural  forms,  and  entrusts 
itself  only  and  completely,  through  reaction  against  a  system  of 
legal  evidence,  to  the  intimate  conviction,  or,  rather,  to  the 
instinctive  intuition  of  judges  and  juries.  Penal  process,  as 
Berenini  said,^  must  retrace  the  course  of  the  criminal,  starting 
with  the  exterior  fact  of  the  violation  of  the  right,  and  following 
causes  with  regard  to  the  physical  relation  in  order  to  discover 
its  author,  and  with  regard  to  the  psychological  relation  in  order 
to  determine  the  motives  which  he  has  obeyed,  and  also  his  an- 
thropological category.  Hence  the  necessity  recognized  by  the 
positive  school  of  reopening  the  question  of  proof  in  criminal 
process  in  order  to  give  it  its  true  fundamental  importance,  by 
systematizing  the  rules  and  inductions,  not  only  according  to  the 
data  of  ordinary  psychology  as  a  few  of  the  classicists  have  done 
(among  them  Pagano,  Bentham,  Mittermayer,  and  Ellero)  but 
also  according  to  the  data  of  criminal  anthropology  which  makes 
criminal  criticism  a  branch  of  the  ordinary  critique  of  proof. 

§  306.    The  Phases  of  Evidence. 

In  the  evolution  of  the  system  of  evidence,  four  characteristic 
phases,  which  follow  more  or  less  accurately  the  phases  of  the 
evolution  of  punishment,  are  found:  —  The  primitive  phase  — 
where  proofs  are  left  entirely  to  the  naive  empiricism  of  personal 
impressions  and  the  critique  of  evidence  has  few  occasions  to  be 
exercised,  because  the  vengeance-defense  is  exercised  almost 
always  against  a  flagrant  crime  or  against  the  well-kno^Ti  author 
of  the  damage.  The  religious  phase  —  in  which  the  divinity  is 
called  upon  to  intervene  to  discover  the  author  of  a  crime  which 
is  regarded  as  an  offense  against  the  deity  (judgment  by  ordeal); 
^  Berenini,  "Azione  e  istruzione"  (Panna,  1888)  p.  153. 


§307]  MACHINERY  OF  PENAL  JUSTICE  465 

The  legal  phase  —  where  the  value  of  divers  elements  of  evidence 
is  fixed  by  law  as  well  as  the  necessity  of  sufficient  degree  of  proof 
to  fix  an  ordinary  or  extraordinary  penalty.  It  is  in  this  period 
that  a  confession  is  considered  the  best  evidence  and,  therefore, 
all  means  are  employed  to  obtain  it,  including  torture,  without 
which  the  judges,  enemies  of  all  innovation,  state,  in  reply  to 
Beccaria,  "it  would  be  impossible  to  administer  justice  because 
it  would  not  be  possible  to  obtain  the  confession  of  the  guilty  nor 
a  certainty  of  his  fault." 

The  sentimental  phase  of  intimate  conviction  —  in  which 
the  opposite  excess  is  reached  by  freeing  the  conscience 
of  the  judge  and  jury  of  every  obligation  in  relation  to 
the  evidence  and  declaring  that  "the  law  does  not  demand 
from  the  jury  an  account  of  the  means  by  which  they  have  de- 
termined upon  conviction"^  and  warning  them  even  "that 
they  failed  in  their  principal  duty  if,  in  determining  their  decision, 
they  considered  the  penal  consequences  that  it  will  have  for  the 
accused"  —  a  naive  manner  of  stating  that  everything  is  left  to 
the  inspiration  of  their  intimate  conscience  to  judge,  in  the  inex- 
tricable tangle  of  evidence,  whether  or  not  it  shows  that  the 
accused  is  really  the  author  of  the  crime.  From  this  principle 
comes  the  absurd  conviction  that  judges,  through  their  study  of 
law,  are  preferable  to  alienists  and  more  competent  to  judge 
whether  the  accused  is  insane,  or  his  intelligence  normal.  It  is 
to  this  phase  of  proof  that  we  wish  to  add  another  —  the  scientific 
—  represented  by  expert  testimony;  that  is  to  say,  by  the  methodic 
collection  and  weighing  of  experimental  conclusions  from  the 
material  circumstances  of  the  crime  (physical,  mechanical,  cali- 
graphical,  professional,  toxicological,  and  other  proofs)  and  above 
all,  by  individual  and  social  proofs  relative  to  the  person  of  the 
delinquent  (anthropological,  psychic,  psycho-pathological).  Let 
us  give  a  few  examples  of  this  last  phase,  for  each  of  the  three 
stages  of  the  penal  process  —  the  collection  of  proofs  (judicial 
police  and  indictment),  argument  on  the  evidence  (accusation 
and  defense),  and  consideration  of  the  evidence  (juries  and  judges). 

§307.    Penal  Process:  Detection  of  the  Criminal;  Bertillonage. 

In  the  first  it  is  clear,  as  I  said  in  my  first  edition  and  as  Righini, 

Garofalo,  Lombroso,  Alonghi,  Rossi,  among  others  have  repeated, 

that  on  the  one  hand  the  study  of  the  anthropological  factors  of 

1  See  Italian  Penal  Code,  Art.  498. 


466  PRACTICAL  REFORMS  [§  307 

crime,  by  determining  the  organic  and  psychic  characteristics  of 
the  delinquent  and  the  part  played  by  age,  sex,  civil  position, 
profession,  and  such  in  the  different  kinds  of  crimes,  and,  on  the 
other  hand,  the  scientific  study  of  the  dangerous  classes  of  society 
oflFer  to  the  judiciary  police  and  the  members  of  the  district  at- 
torney's staff  new  and  surer  means  for  the  discovery  of  the  guilty. 
Tatooing,  the  lines  of  the  face,  and  shape  of  the  head,  physio- 
psychological  knowledge,  new  discoveries  of  sensibility,  reflex 
activity,  vascular  reaction,  and  vision,  together  with  many  others, 
make  this  important  series  of  proofs  of  personal  identity  and 
criminal  propensity  constantly  more  easy  and  complete,  and  are 
of  great  service  in  avoiding  false  scents  or  in  making  the  acquittal 
or  conviction,  now  usually  inspired  by  a  hasty,  insufficient,  or 
partial  evidence,  more  just.  The  enormous  number  of  crimes 
unpunished  because  of  lack  of  evidence  sufficient  to  begin  or 
pursue  a  prosecution  is  alone  enough  to  show  the  importance 
and  numberless  advantages  of  this  first  connection  of  criminal 
sociology  and  procedure,  as  foretold  by  Ellero  in  his  criminal 
critique.^ 

The  application  of  anthropometry  to  the  proof  of  identity 
and  consequently  of  recidivity,  first  made  by  Bertillon  in 
Paris,  and  now  adopted  in  most  American  and  European  cities, 
is  too  well  known  to  require  description.  It  will  be  enough  to 
note  the  modifications  proposed  by  Galton  and  Anfosso,  and  the 
collection  of  anthropometical  data  in  the  judiciary  department, 
proposed  by  Capagnome  at  the  same  time  as  the  collection  of 
such  data  was  begun  in  the  army.^    Anthropometical  identifica- 

i  EUero,  "Trattati  criminali"  (Bologne,  1875),  pp.  150,  151.  Cattaneo, 
writing  of  Lauvergne  on  galley  slaves,  foretold  more  than  thirty  years  ago  the 
new  direction  which  penal  science  and  practice  would  take  by  adding  the  study 
of  the  delinquent  to  that  of  the  crime.  He  was  cited  by  Magno,  "II  nuovo  codice 
penale  e  la  scuola  positiva"  (Milan,  1898),  p.  17,  and  by  Lombroso,  "  L'antropologia 
criminale  nei  pensatori  antichi,"  in  the  "Rivista  scientifica  del  diritto"  (April, 
1898). 

*  Simple  anthropometrical  identification  of  delinquents  is  now  adopted  by 
many  European  countries  (Germany,  England,  Russia,  Spain,  Roumania,  and 
Switzerland),  in  many  parts  of  the  United  States  and  in  South  America.  There 
is  a  complete  bibliography  on  the  subject.  At  Paris,  where  it  was  inaugurated, 
it  has  proved  the  identity  of  from  five  to  six  hundred  recidivists  every  year  since 
1885  ("Revue  p^nitentiaire,"  1896,  p.  346),  \t-ith  percentage  increasing  from  10 
per  cent,  in  1888  to  23  per  cent,  in  1895.  Bertillon,  "Actes  du  congr^  de  I'anthro- 
pologie  criminelle"  (Geneva,  1898),  p.  64.  The  Bertillon  system  has  not  escaped 
criticism  (See  Severi,  id  ed.  (Milan,  1895),  Vol.  Ill,  p.  1400),  because  it  deals  only 
with  individuals  who  have  attained  complete  development,  that  b  to  say,  of  over 
twenty  years  of  age;   and  thus  bom  delinquents,  of  precocious  development,  are 


§308]  MACHINERY  OF  PENAL  JUSTICE  467 

tion  of  criminals  (Bertillonage)  was  the  beginning  of  a  department 
of  scientific  police,  instituted  by  Ottolenghi  in  1896  as  a  free 
course  in  the  University  of  Siena,  subsequently  in  1903  made 
official  by  a  decree  of  Zanardelli,^  and  compulsory  for  all  mem- 
bers of  the  police  department.  In  this  official  course,  Ottolenghi, 
transferred  to  the  University  of  Rome,  as  professor  of  legal  medi- 
cine, teaches  criminal  anthropology  and  psychology,  simple 
Bertillonage  and  all  subjects  which  have  a  definite  relation  with 
the  duty  of  the  police  in  finding  and  fixing  crimes  and  delinquents 
and  in  watching  suspects.  In  the  same  way  the  biographical 
description  of  convicts  has  been  reformed  by  means  of  criminal 
psychology  and  anthropology. 

§308.    Penal  Process:  Detection  of  the  Criminal;  Sphygmography. 

Another  efficacious  instrument  in  judicial  inquiries  is  the 
sphygmographic  indications  of  the  variation  of  circulation.  Lom- 
broso  experimented  with  this,  finding  that  a  man  accused  of  the 
theft  of  a  gold  object  at  Turin,  of  which  he  was  innocent,  showed 
no  emotion  under  the  sphygmograph,  but  showed  the  most  lively 
emotion,  when  another  theft  was  mentioned,  of  which  he  was  not 
suspected,  but  of  which  he  was  subsequently  proven  guilty,  thanks 
to  evidence  whose  traces  were  discovered  by  the  sphygmograph.* 
No  less  eloquent  in  proving  the  value  of  criminal  anthropology 
are  the  reparation  of  judicial  errors,  which  it  has  effected.' 
The  sphygmograph  is  a  valuable  diagnostic  instnmient,  especially 
in  case  of  simulated  disease.  For  example,  Voisin  made  sphygmo- 
graphic experiments  on  a  man  who  for  six  years  had  simulated 
epileptic  attacks  in  the  streets  of  Paris  for  the  purpose  of  obtain- 
ing alms  and  escaping  military  service.  Comparing,  however, 
the  sphygmographic  curves  obtained  during,   before,  and  after 

not  dealt  with,  while  certain  anthropometric  data  (for  example,  stature)  can  be 
disguised  to  a  certain  extent,  and  that,  therefore,  the  measurements  have  a  per- 
sonal coefficient  of  variation  depending  upon  who  takes  them.  Gallon,  "Finger 
Prints"  (London,  1892),  "Fingerprint  Directories"  (London,  1895),  and  "  Lea 
empreintes  digitales,"  in  the  "Actes  du  congres  de  I'anthropologie  criminelle" 
(Geneva,  1897),  p.  37,  proposed  fingerprints  to  the  anthropometrical  measurement 
and  photograph,  because  the  lines  in  fingers  never  vary  in  one  individual  and 
are  always  diflferent  in  different  individuals.  Furthermore,  this  has  been  done  in 
China,  taking  an  impress  of  the  whole  hand.  Daae,  "Le  impronte  digital!  per  la 
constatazione  dell'  identita,"  translated  in  "Revue  p^nale  Suisse"  (1894),  Vol.  IV. 

»  25  October,  1903. 

*  Lombroso,  "Polizia  scientifica,"  in  "Pazzi  ed  anomali." 

3  Rossi,  "Una  centuria  di  criminali"  (Turin,  1888),  Appendix  "Controprova 
sopra  im  condannato  innocente,"  p.  xiii. 


468  PRACTICAL  REFORMS  [§  309 

these  attacks,  suspected  and  actually  simulated,  with  those 
furnished  by  several  epileptics,  he  reached  the  conclusion  that 
"the  curves  shown  by  the  imitator  have  no  resemblance  to  those 
shown  by  the  several  epileptics  and  resembled  those  of  healthy 
individuals  after  violent  gesticulations."  ^  Yet,  in  the  prosecu- 
tion of  Misdea,  where  epilepsy  was  suspected  and  in  fact  existed, 
authorization  to  make  a  sphygmographic  study  was  refused,  on 
the  grounds  that  it  was  not  necessary  to  the  needs  of  justice.' 

§  309.    Penal  Process:  Detection  of  the  Criminal;  Conclusion. 

Hypnotism  also  can  be  employed  in  criminal  researches.  Of 
course,  its  legal  conclusion  must  be  carefully  circumscribed  in 
order  to  avoid  abuses,  until  a  scientific  control  of  its  principal 
inductions  has  been  attained.  But  it  undeniably  offers  great 
aid  in  collecting  evidence.  The  surest  and  richest  applications 
in  the  collecting  of  proofs,  so  far  —  by  substituting  scientific 
observation  for  the  more  or  less  happy  empirical  and  professional 
intuition  of  the  police  and  magistrates  —  are  offered  by  the 
study  of  the  organic  and  even  more  of  the  psychic  characteristics 
of  different  criminals.  In  the  psychology  and  psycho-pathology 
of  homicides '  a  long  list  of  symptoms,  characterizing  born  and 
insane  homicides,  and  those  actuated  by  passion  is  given.  These 
symptoms  deal  with  their  manner  of  acting  before,  during,  and 
after  the  crime.  From  the  mass  of  these  characteristics,  accord- 
ing to  the  predominance  of  some  or  others,  and  from  the  material 
circumstances  of  the  crime  studied  in  their  psychological  attitude 
(for  example,  cruelty,  ferocity,  number  of  victims,  time,  place, 
and  instrument),  indications  can  be  gathered  before  the  author 
is  known,  to  guide  in  the  collection,  completion,  and  weighing  of 
evidence.  Experience  has  shown  me  in  my  professional  practice, 
through  the  great  efficacy  of  psychological  symptoms,*  the 
necessity  of  teaching  them  to  the  police  and  judiciary  as  an  aid 
of  the  technical  instruction,  of  which  I  will  speak  at  a  later  point.* 

^  Voisin,  "De  I'epilepsie  simulee  et  de  son  diagnostic  par  les  caracteres 
sphygmographiques  du  pouls,"  A.  H.  P.  (April,  1868),  reviewed  A.  M.  P.  (1869), 
II,  165;  a.,  "LeQons  cliniques  sur  les  maladies  mentales  et  nerveuses,"  Paris, 
1883,  p.  610. 

*  Lombroso,  "Misdea  e  la  nuova  scuola  penale"  (Turin,  1884). 
^  Ferri,  "L'Omicidio"  (Turin,  1895). 

*  Ferri,  "  Provocazione  e  premeditazione,"  in  the  volume  "Difese  penali  e  studi 
di  giurisprudenza,"  p.  436. 

*  Gamier,  "Necessite  de  I'examen  psycho-moral  de  certains  prevenus  ou 
accuses  pendant  I'instruction,"  A.   C.   A.   C.   (Brusseb,   1893),  p.   163;   Maure, 


§309]  MACHINERY  OF  PENAL  JUSTICE  469 

This  data  is  not  only  applicable  to  the  detection  of  individual 
criminals. 

The  enormous  value  of  testimony  in  the  course  of  criminal 
evidence  and  the  traditional  empirical  tests  of  criminality, 
applied  every  day  by  district-attorneys  and  judges  to  all  wit- 
nesses, considered  without  distinction  or  differentiation  as  an 
abstract  type  (like  the  delinquents  themselves)  by  the  classical 
procedurists,  except  when  certain  circumstances  exclude  a  wit- 
ness under  express  statutory  provision,  show  the  real  necessity 
for  the  application  of  the  scientific  results  of  psychology  and 
psycho-pathology.^  The  use  of  technical  and  experimental 
tests  of  human  psychology  and  psycho-pathology  in  the  considera- 
tion of  testimony  will  be  a  much  surer  guarantee  of  truth  than 
the  formality  of  an  oath,  whose  abolition  the  positive  school 
demands,  and  all  the  rules  and  regulations,  even  when  observed 
with  English  precision,^  which  constitute  only  external  and, 
therefore,  less  sure  conditions  of  veracity.  To  give  a  few  of  the 
more  striking  examples  —  without  speaking  of  the  absurd  con- 
tempt for  ordinary  tests  of  credibility,  in  the  case  of  the  poKce, 
whose  testimony  is  accepted  every  day  without  a  thought  that 
they  are  always  directly  or  indirectly  interested  parties,  without 
considering  such  case,  what  do  the  courts  allow  for  the  influence 
of  auto-suggestion,  of  suggestion  in  the  case  of  women,  children, 
and  neurasthenics.'*  ^  Yet  the  tendency  of  hysterics  to  calumny 
and  the  number  of  children  who  lie^  are  an  eloquent  proof  that 

"Mesures  propres  h,  faire  connattre  la  personalite  physiologique,  psychologique  et 
morale  du  prevenu,"  A.  C.  A.  C.  (Geneva,  1897),  pp.  120,  133;  Franchi,  "Proc^ 
penal  et  anthropologie  criminelle,"  A.  C.  A.  C.  (Amsterdam,  1901),  p.  155. 

^  This  was  the  object  of  the  special  study  of  Franchi,  "  II  principio  individua- 
lizzatore  neir  istruttoria  penale"  ("  Senale  positiva,"  Nov.  1900).  See  also  Binet, 
"  Application  des  '  mental  tests  '  a  I'etude  de  la  farce  de  suggestion  produite  par 
les  mots,"  in  "  la  Riv.  di  scienze  biologiche,"  Aug.,  Sept.  1898. 

^  Speyer,  "Les  regies  de  la  preuve  en  droit  penal  anglais"  (law  of  evidence), 
in  the  "Revue  de  droit  international"  (1898),  p.  478;  "The  Criminal  Evidence 
Act  of  1898"  {id.,  1899),  p.  79;  Manzini,  "Legge  inglese  di  riforma  del  diritto  di 
prova,"  in  the  "Revue  penale,"  July,  1899  (Code,  Legis.,  p.  402). 

*  Binet  et  Henry,  "La  suggestibilite  naturelle  des  enfants,"  in  the  R.  P.  (October, 
1894);  Bertillon,  "Suggestion  criminelle  et  faux  temoignages,"  A.  C.  A.  C.  (Geneva, 
1897),  p.  167;  Rouhy,  "Les  faux  temoignages  d'une  hysterique,"  A.  A.  C.  (March, 
1897),  p.  148;  Pugliese,  "Sulla  valutazione  della  prova  orale,"  R.  G.  (March, 
1896),  p.  216. 

*  Bourdin,  "Les  enfants  menteurs"  (Paris,  1883);  Motet,  "Les  faux  temoi- 
gnages des  enfants"  (Paris,  1887);  Picard,  "Introduction  au  XIX^  vol.  des  pan- 
dectes  beiges"  (Brussels,  1890);  Bossier,  "De  la  valeur  des  temoignages  des 
enfants"  (Lyons,  1893);  SuUy,  "Les  enfants  menteurs,"  "Revue  des  Revues," 


470  PRACTICAL  REFORMS  [§309 

biology,  psychology,  and  psycho-pathology,  both  ordinary  and 
criminal,  are  and  constantly  will  be  more  applicable  to  the  laws 
of  evidence.  This  reform  will  only  be  effected  when  justice 
becomes  a  living  entity  and  judges  look  upon  criminals  and 
witnesses  as  human  beings.  But  apart  from  these  examples 
which  show  the  capital  importance  of  what  Judge  Sarrante  rightly 
called  "The  judicial  appHcation  of  criminal  sociology,"  ^  as  far 
as  the  collection  of  evidence  is  concerned  (and  incidentally  use 
should  be  made  of  stenographs  and  phonographs  for  all  examina- 
tions and  depositions)  the  most  urgent  practical  reform  is  the 
placing  of  experts  in  every  magistrate's  office. 

Apart  from  the  technical  instruction  in  criminal  biology  and 
physiology  which  is  necessary  not  only  for  judges  but  also  for 
magistrates  and  higher  police  officials,  an  expert  or  a  committee  of 
experts  in  criminal  anthropology  should  be  permanently  attached  to 
every  magistrate's  office.  Besides  the  evident  advantages  which 
this  would  give  through  a  prompt  anthropological  classification  of 
the  accused  in  order  to  determine  whether  he  was  an  insane,  con- 
genital, or  occasional  delinquent  (while,  of  course,  his  act  would  be 
juridically  classified),  the  scandal  of  dupUcate  expert  testimony 
given  by  the  prosecution  and  the  defense  would  be  avoided.  There 
must  be  only  one  board  of  experts  chosen  from  among  doctors 
having  diplomas  and  having  also  taken  a  special  course  of  instruc- 
tion as  medico-legal  experts,  who  would  present  to  the  magistrate 
and  judge  a  single  report  as  the  common  result  of  their  investiga- 
tions or  in  the  case  of  an  irreconcilable  disagreement  between 
them,  —  a  report  which  could  be  reviewed  by  a  superior  scientific 
committee,  as  is  the  case  in  Germany,  Austria,  and  Russia.  This 
report  would  be  binding  upon  the  judges,  at  least  in  its  technical 
and  essential  parts  although  in  every  case  they  would  have  a 
right  to  ask  for  further  information  and  proofs,  which  the  presi- 
dent of  the  board  would  give  for  his  colleagues.  Thus  the  scandals 
caused  by  judges,  knowing  nothing  of  psychiatric  sciences,  who 
subscribe  without  a  moment's  hesitation  to  the  opinions  of  experts 
in  handwriting  and  chemistry  while  on  the  other  hand  they  believe 
that  they  are  able  by  aid  of  simple  common  sense  to  form  an 

Nov.  15,  1895;  and  "Revue  bleue,"  Feb.  15, 1898,  and  in  the  volume,  "Etudes 
surl'enfance"  (Paris,  1898);  Campolongo,  "Le  testimonianze  dei  fanciulle  e  degli 
adolescente"  (Naples,  1897). 

1  Sarrante,  "Les  applications  judiciaires  de  la  sociologie  criminelle,"  A.  C.  A.  C. 
(Lyons,  1890),  pp.  386  et  seq.  See  also  Ottolenghi  and  Rossi,  "Duecento  criminali 
e  prostitute,"  P.  Ill,  "  AppUcazioni  pratiche,"  p.  249. 


§310]  MACHINERY  OF  PENAL  JUSTICE  471 

opinion  of  the  most  obscure  forms  of  mental  alienation.  This 
pretension,  born  of  a  prejudice,  one  of  the  results  of  the  old  spiritu- 
aUstic  ideas,  and  upheld  by  Kant  himself,  that  the  consideration 
of  mental  diseases  is  within  the  sphere  of  the  philosopher  rather 
than  the  doctor,  is  reinforced  by  the  necessity  of  protecting  society, 
because  there  is  a  general  beUef  that  the  admission  of  mental  in- 
firmity and  the  exclusion  of  moral  liberty  would  result  in  the 
freeing  of  dangerous  delinquents.  But  this  consideration  disap- 
pears when  the  basis  of  social  accountabihty  is  substituted  for 
that  of  moral  liberty  in  accordance  with  positivistic  demands. 

§310.  Penal  Process:  Trial. 
Thus  far  we  have  dealt  with  evidence  gathered  during  the 
preparation  of  the  case.  As  far  as  this  is  concerned  we  will  not 
exaggerate  the  dogmatic  necessity  of  complete  publicity.  We 
believe,  however,  in  the  necessity  of  the  presence  of  the  accused. 
Now  we  come  to  the  second  stage  of  the  process,  that  is  to  say, 
the  argument  on  the  evidence  at  trial.^  The  attorneys  for  the 
prosecution  and  defense  are  naturally  those  who  take  part  in  it. 
And  here  (for  we  cannot  enter  into  the  detailed  questions  of 
procedural  reform)  the  positivist  principle  of  penal  judgment  is 
to  be  applied.  As  soon  as  the  laws  of  evidence  have  been  scientifi- 
cally determined  and  the  anthropologico-criminal  opinion  of  the 
expert  has  been  made  the  basis  of  this  argument  before  the  court 
the  long,  useless  harangues  on  the  moral  responsibility  of  the 
accused  will  be  eliminated.  The  arguments  will  consist  in  estab- 
lishing as  at  present,  but  in  accordance  with  scientific  criteria, 
the  certitude  of  the  material  responsibility  of  the  accused.  In 
cases  of  flagrant  delict  or  confession  (and  this  confession  must 
be  confirmed  by  extensive  evidence)  it  will  deal  only  with  the 
character,  the  determinative  motives,  and  consequently  the  an- 
thropological category,  of  the  delinquent  in  order  to  determine 
upon  the  defensive  measures  best  suited  to  the  conditions  of  the 
act  and  the  agent. 

*  In  France,  the  Act  of  8th  December,  1897,  introduced  radical  innovations 
in  the  secret  of  penal  knowledge.  Franchi,  attacking  the  decided  opposition  of 
Garofalo  on  this  subject,  took  the  other  stand,  which  he  harmonized  with  "the 
anthropological  integration  of  penal  knowledge."  See  "H  principio  individualiz- 
zatore  nell'  istruttoria  penale,"  "Scuola  positiva"  (November,  1890),  and  "Procte 
penal  et  anthropologic  criminelle,"  A.  C.  A.  C.  (Amsterdam,  1901). 


472  PRACTICAL  REFORMS  [§§311,312 

§  311.    Penal  Process :  Public  Defenders. 

Public  prosecutors,  like  aU  other  attorneys,  must,  therefore, 
have  a  technical  knowledge  not  of  the  history  of  law  nor  of  law 
itself,  either  Roman  or  civil,  but  a  thorough  knowledge  of  biology, 
psychology,  and,  in  a  word,  of  all  the  natural  and  social  sciences 
which  form  the  new  science  of  criminal  sociology.^  To  obtain 
this  double  object  of  technical  learning  in  the  attorneys  for  the 
prosecution  and  defense  and  an  objective  and  clinical  discussion, 
it  will  be  necessary  and  logical  to  change  the  role  of  criminal 
lawyer  into  a  public  office  like  that  of  the  commissioner  of  police, 
elective  and  actually  guaranteed  a  real  independence  both  from 
the  executive  power  and  from  public  opinion.  For  while  it  is 
possible  that  the  civil  lawyer  can  be  the  representative  of  a  particu- 
lar interest,  for  private  property  is  the  foundation  of  family  life 
and  of  rights,  yet  the  criminal  lawyer,  with  the  acquittal  of  the 
guilty  and  the  condemnation  of  the  innocent  possibly  within  his 
power,  cannot  represent  such  an  interest.  Defense  and  prosecu- 
tion must  both  be  social  functions  given  to  different  officers  only 
because  it  is  a  mental  impossibility  for  the  same  man  in  the  same 
case  to  give  a  just  consideration  to  the  evidence  on  both  sides.^ 
To  these  advantages,  we  can  add  only  that  such  a  system  will 
avoid  all  the  tricks  of  competition  by  lawyers  in  the  exercise  of  a 
private  profession,  and  the  crying  inequality  between  the  number 
and  ability  of  the  attorneys  for  the  rich  and  the  poor. 

§312.  Penal  Process:  The  Judiciary. 
The  penal  process  reaches  its  practical  conclusion  in  its  third 
phase,  the  judgment  based  on  the  evidence.  In  spite  of  the 
mania  for  legislation,  rampant  in  all  countries,  it  is  clear  that 
the  effect  of  the  laws  depends  upon  the  quality  of  the  men  charged 
with  their  application.  A  bad  law  applied  by  good  judges  will 
give  better  results  than  a  law  good  in  theory,  but  applied  by 
incapable  men.    Reforms  in  the  penal  code  are  generally  con- 

^  Abadane,  "Le  barreau  frangais  et  la  criminologie  positif,"  A.  A.  C.  (March, 
1888);  Garofalo  and  Carelli,  "Riforma  della  procedura  penale,"  Vol.  Ill,  "Dei 
difensori,"  L.  LXXXVII  et  seq. 

*  Thus,  the  Republic  of  Venice  had  "Avogadori  del  comune"  for  the  prosecu- 
tion and  "avvocati  nobili  dei  prigioni"  for  the  defense,  while  in  Naples  and  Pied- 
mont there  was  an  "avvocatura  dei  poveri,"  which  still  survives  (as  a  charitable 
institution)  in  the  avocate  of  the  poor  at  Alexandrie.  "Rivista  penale"  (May, 
1898),  p.  520.  Defense,  as  a  public  department,  can  form  a  part  of  a  i>opular 
court,  as  has  been  proposed  by  Lombroso  and  Laschi. 


§313]  MACHINERY  OF  PENAL  JUSTICE  473 

sidered  necessary  for  the  defense  of  society  from  crime,  but  it 
will  be  first  necessary  to  obtain  a  good  organization  through  a 
proper  choice  of  the  personnel,  before  taking  up  the  technical 
construction  of  repressive  means,  and  procedural  reforms  (which 
is  the  honest  code),  and,  lastly,  reform  in  the  criminal  code  (the 
code  of  delinquents).  On  this  point  there  is  a  marked  difference 
between  England,  where  criminal  law,  not  yet  codified,  theoreti- 
cally very  imperfect,  but  administered  by  excellent  judges,  is 
thoroughly  satisfactory,  and  Italy,  where,  after  twenty-five  years 
spent  in  compiling  a  code,  but  with  a  bench  incapable  of  scientific 
thought  and  dependent  on  the  executive  power,  criminal  justice 
is  discredited,  vexatious  for  the  honest,  and  powerless  against 
the  guilty.  The  two  supreme  conditions  for  a  magistracy  capable 
of  its  terrible  and  difficult  mission  are  the  scientific  capacity  and 
the  independence  of  judges. 

§313.    Penal  Process:  Scientific  Capacity  of  Judiciary. 

As  to  scientific  capacity;  the  character  and  element  of  a  penal 
judgment,  according  to  the  positive  school,  require  the  judge  as 
well  as  the  magistrate  and  police,  to  have  a  special  knowledge 
and  not  to  rely  entirely  on  common  sense.  The  positive  school, 
therefore,  is  opposed  to  the  jury  system,  which  represents  the 
exact  opposite  of  special  knowledge.  There  is  another  radical 
reform,  advanced  by  Garofalo  ^  at  the  beginning  by  the  positive 
school  and  since  championed  by  many  others.  This  is  the  separa- 
tion of  the  criminal  and  civil  judiciary.  Only  when  criminal 
judges  have  a  special  knowledge  of  anthropological  and  sociologi- 
cal sciences  (as  required  by  the  law  of  the  division  of  labor)  will 
they  be  able  not  only  to  give  more  accurate  judgments,  but  also 
to  limit  the  bounds  of  prosecution  and  defense,  and  to  appreciate, 
understand,  and  apply  with  greater  pertinence  the  verdicts  of 
medico-legal  experts  and  criminal  anthropologists.  The  practical 
means  of  obtaining  this  radical  reform  of  the  magistracy  naturally 
begins  with  the  law-school  curriculum,  where,  after  two  years' 
work  in  common,  there  should  be  a  separation  of  those  who 
desire  to  study  civil  and  private  law,  and  those  who  wish  to  follow 
criminal  and  public  law.  The  latter  should  be  given  much  more 
extensive  courses  in  the  social  and  natural  sciences  (biology  and 
psychology),  both  with  regard  to  criminal  man  and  in  connection 
with  general  sociology. 

1  Garofalo,  "Cid  che  dovrebbe  easere  un  giudizio  penale." 


474  PRACTICAL  REFORMS  [§314 

Even  in  the  law,  students  should  be  admitted  to  what 
EUero  called  "criminal  clinics."  They  should  be  required 
to  make  scientific  visits  and  give  methodical  study  to  delin- 
quents in  prisons  and  asylums  for  the  criminal  insane.  Tarde 
proposed  such  a  course  and  it  was  approved  by  the  Anthropo- 
logico-criminal  Congress  at  Rome,  on  the  motion  of  Moleschott 
and  Ferri  in  the  following  resolution:  "The  Congress,  in  accord- 
ance with  the  scientific  tendency  of  criminal  anthropology,  ex- 
presses the  hope  that  prison-wardens,  adopting  such  precaution 
as  may  be  necessary  to  ensure  discipline  and  the  individual  rights 
of  the  prisoners  in  their  charge,  will  admit  professors  and  students, 
under  the  direction  and  upon  the  responsibihty  of  the  professors, 
of  criminal  law  and  legal  medicine,  for  the  clinical  study  of  de- 
Unquents,  preferably  as  a  society  for  the  relief  of  prisoners  and 
ex-convicts."  ^  And  there  should  be  a  special  school  for  the 
training  of  police,  similar  to  that  for  prison  officials.  This  need 
has  been  partially  met  by  the  employment  of  detectives.  The 
duties  of  committing  magistrates  should  form  a  special  technical 
course.  They  should  not  be  chosen,  as  they  now  are  in  Italy, 
without  special  qualifications,  for  financial  reasons  alone.* 

§  314.    Penal  Process:  Independence  of  the  Judiciary. 

As  to  the  second  capital  condition  for  the  radical  reform  of 
the  judiciary,  the  complete  independence  of  criminal  judges  from 
influence  by  the  executive  power  must  be  guaranteed.  For  now, 
in  spite  of  the  much  bruited  inviolabihty  of  the  judiciary,  the 
right  of  transfer,  even  among  positions  of  equal  official  rank,  is  a 
very  real  means  of  punishment  or  reward.  The  independence 
is  much  more  difficult  to  insure  with  the  criminal  than  with  the 
civil  judiciary,  especially  in  reference  to  pohtico-social  crimes. 
Its  guarantees  must  he  in  the  organization  itself  —  for  despite 
the  belief  that  human  nature  does  not  vary,  men  give  very  differ- 
ent results  according  to  the  places  where  they  expend  their  activ- 

^  A.  C.  A.  C,  p.  398  —  a  hope  renewed  by  studies  of  delinquents  in  Paris 
(1889),  (Lyons,  1890),  p.  204.  To  the  same  effect,  Winkler,  "Xecessite  d'introduire 
I'etude  d'anthropologie  criminelle  dans  les  cliniques  psycho-pathologiques  pour 
les  6tudiants  en  medecine  et  en  droit,"  A.  C.  A.  C.  (1893),  p.  346. 

*  See  Lombroso,  "Sur  Tenseignement  penitentiaire "  (1890),  a  report  to  the 
prison  of  St.  Petersburg,  "  L'antrop>ologia  criminale  e  le  recenti  progresi";  "Le 
pur  recenti  scoperte  ed  applicazioni  dell'  antropologia  criminale"  (Turin,  1893); 
Gross,  "Ein  Kura  iiber  Kriminalistic  fiir  die  Instruktionsoffiziere,"  Z.  G.  S.  (1894), 
XrV,  677.  The  need  of  judges,  especially  in  the  lower  courts,  with  special  techni- 
cal knowledge,  was  discussed  in  "  I'Unon  intern,  de  droit  p^al "  (Linz,  1895). 


§  314]  MACHINERY  OF  PENAL  JUSTICE  475 

ity.^  For  such  an  organization  as  will  insure  independence  and 
impartiality,  these  reforms  are  needed.  First,  every  judge  must 
bear  not  only  the  technical  but  also  the  moral  and  social  responsi- 
bility of  his  sentences.^  The  system  of  "per  curiam"  judgment 
seems  made  expressly  to  avoid  this. 

A  single  judge,  on  the  other  hand,  following  the  English 
system,  gives  the  best  guarantees  in  this  respect.  It  arouses 
a  feeUng  of  responsibility,  entails  a  conscientious  study  of 
each  case  (in  place  of  reading  notes  on  it),  and  rapidity 
of  decision.  The  fact  constantly  observed  by  the  collective 
psychologist,  that  the  union  of  several  men  in  circumstances 
demanding  loyalty,  sincerity,  and  personal  courage  (required 
in  every  criminal  case)  results  in  a  mean  inferior  to  the  degree 
of  each  component  individual,  and  is  a  decisive  argument  in 
favor  of  a  single  judge.  The  arguments  against  this  are  based 
on  prejudice  and  the  desire  of  every  judge  to  shift  his  own 
responsibihty.  Second,  during  the  period  of  transition  between 
the  actual  organization  of  criminal  justice  and  that  of  the  future 
cUnic  for  the  prevention  of  crime,  the  criminal  judiciary  should 
be  elective,  as  it  is  in  the  United  States  and  in  several  of  the 
Swiss  Cantons.  There  should  be  periodical  elections,  with 
perhaps,  provision  against  consecutive  terms  in  order  to  avoid 
the  grave  dangers  of  "professional  perversion,"  or  mental 
habits  resulting  in  an  inability  to  view  the  world  save  from  a 
particular  angle.  By  election,  partiaUty  and  servility,  which 
inevitably  exist  where  the  judiciary  is  a  professional  career,  will 
be  eliminated.  They  no  longer  exist  in  England  where  the  judges, 
named  by  the  crown,^  it  is  true,  are  few  in  number,  well  paid,  and 
chosen  from  among  the  most  successful  lawyers,  without  possi- 
bility of  subsequent  return  to  the  Bar.  Third,  elective  judges 
must  be  subject  to  an  efficacious  control,  not  only  by  public 

1  The  same  is  true  of  deportation,  military  colonization,  etc.,  where  the  officials 
are  forced  into  unavoidable  abuses.  It  is  useless  to  defend  them  by  imdertaking 
to  employ  only  men  incapable  of  abuses,  for  they  depend  much  more  on  the  ex- 
ceptional conditions  of  the  situation,  a  power  beyond  control,  than  on  the  malice 
of  men.  Good  men  and  bad  remain  pretty  much  the  same  in  all  surroundings; 
but  they  are  very  rare.  The  host  of  mediocre  individuals  adapt  themselves  to 
the  conditions  of  existence,  and  give,  according  to  circumstances,  good  or  bad 
results. 

*  Borciani,  "I  giudici"  (Emilia,  Reggio,  1895);  Bellat,  "Judicial  Reform," 
in  the  "Westminster  Review"  (April,  1896);  and  "Revue  des  Revues"  (1  May, 
1896). 

'  De  NoaiUes,  "Le  pouvoir  judiciaire  aux  £tats-Unis,"  R.  R.  (1  August,  1888). 


476  PRACTICAL  REFORMS  [§  315 

opinion  (exercisable  by  a  vote  of  public  censure),  but  through 
some  disciplinary  power,  to  a  certain  extent  foreign  to  the  judi- 
ciary in  order  that  a  new  form  of  irresponsible  tyranny  will  be 
avoided  and  the  people  protected  from  the  abuse  of  judicial 
power  and  the  latter  from  the  abusive  pressure  of  pubUc  opinion. 

§  316.    Penal  Process :  The  Qualification  of  the  Judiciary. 

Other  qualifications  besides  scientific  knowledge  and  inde- 
pendence are  needed  for  the  criminal  judiciary.  The  application 
of  the  law  to  particular  cases  in  the  criminal  branch  is  not  simply 
a  function  of  abstract  legal  logic  (as  it  is  generally  in  civil  cases). 
It  is  the  psychological  adaptation  of  an  abstract  rule  to  a  living 
man.  For,  the  criminal  judge  cannot  and  should  not  isolate 
himself  from  the  surroimding  world,  to  become  the  "lex  loquens" 
or  mouthpiece  for  the  law.  As  has  been  said  under  another 
heading,  the  conditions  of  the  agent,  the  act,  and  society  are 
the  vital  and  human  tests  in  every  criminal  case.  The  laws  of 
the  future  will  be  free  from  every  Chinese  puzzle  of  legal  dosim- 
etry and  will  be  only  general  rules  without  more  or  less  sophisti- 
cal and  abstruse  definitions.  In  them  punishabihty,  to  use  an 
antiquated  term,  will  depend  less  upon  the  juridical  factors 
enumerated  in  each  statute  than  on  the  personal  qualities,  ten- 
dencies, and  motives  of  the  author  of  the  harmful  or  dangerous 
act.  In  this  way,  in  penal  justice,  considered  as  a  preservative 
clinic  against  criminality,  above  all,  at  the  moment  of  weighing 
the  evidence  and  giving  sentence,  this  old  question  of  the  "arbi- 
trary power"  of  the  judge  will  arise.  On  this  subject,  one  excess 
has  foUowed  another.  "Through  reaction  against  the  unlimited 
power  of  the  judiciary,  a  legend  comes  down  from  the  pubUc 
remonstrances  of  the  Middle  Ages,  the  exaggeration  of  the  well- 
known  aphorism  has  been  reached;  'The  best  law  is  that  which 
leaves  the  least  to  the  judicial  decision;  the  best  judge  is  he  who 
takes  the  least  upon  himself.'" 

But,  if  the  penal  judicial  function  cannot  be  exercised,  as  it 
now  is,  by  a  useless  dosimetric  inquiry  into  the  moral  respon- 
sibiUty  of  the  delinquent,  encumbered  by  all  the  complicated 
rules  concerning  attempt,  compUcity,  and  misdemeanors  com- 
mitted in  the  attempt  at  a  felony,  in  other  words,  if  criminal  law 
deals  with  the  crime  and  not  the  criminal  delinquent,  and  if  he 
is  but  a  secondary  consideration,  as  the  point  of  algebraic  appli- 
cation of  legal  ndes,  then  it  is  certain  that  the  arbitrary  power 


§315]  MACHINERY  OF  PENAL  JUSTICE  477 

of  the  judge  must  be  enclosed  by  the  more  or  less  efficacious  bar- 
riers of  a  statute,  which,  in  an  Oriental  system  of  degrees  of 
punishment,  has  to-day  resulted  in  a  logarithmic  system  of  frac- 
tions with  minutely  graded  interest  and  has  transformed  the 
judge  into  an  accountant.  But  if  a  penal  judgment  is  what  it 
should  be,  a  bio-psychological  examination  of  the  accused,  rele- 
gating the  crime,  as  the  condition  of  punishability,  to  the 
second  place,  and  regarding  the  man  who  was  its  author,  as  of 
chief  importance,  then,  clearly,  criminal  law  should  be  con- 
trolled by  a  few  general  rules  on  the  means  of  defense  in 
different  forms  of  social  sanction  and  the  constituent  elements  of 
each  crime,  so  that  the  judge  may  preserve  greater  freedom, 
justified  by  his  scientific  capacity,  in  judging  the  man  brought 
before  him. 

In  a  rational  organization  of  the  preservative  clinic  against 
criminality,  however,  the  position  of  the  judge  will  lose  much 
of  the  excessive  and  abusive  importance,  which  it  now  enjoys, 
thanks  to  the  absurd  principle  that  "res  judicata  pro  veritate 
habetur,"  which  simply  gives  to  judges  (born  of  woman, 
however)  the  gift  of  infallibility,  while  a  single  judicial  error 
proves  the  absurdity  of  the  whole  proposition.  For  not  only 
will  means  of  prophylaxis  and  hygiene  have  greater  development 
and  importance  in  the  social  function  of  defense  against  criminality, 
as  we  understand  it,  than  repressive  machinery  after  the  com- 
mission of  the  wrong,  but  in  the  latter  case  the  penal  judgment 
will  not  be  final,  for  there  will  be  periodic  revision  of  sentences. 
As  we  shall  consider  at  a  later  point,  the  defensive  means  against 
a  crime  already  committed  will  be  reduced  to  reparation  in  damages 
for  the  smaller  crimes  committed  by  criminals  who  are  a  source 
of  little  danger  to  society  and  are  adaptable  to  social  life,  and  to 
segregation  for  an  indeterminate  period  in  the  case  of  dangerous 
criminals,  more  or  less  readaptable.  The  execution  of  the  latter 
sentence  will  not  be  unsupervised  as  to-day,  but  will  be  subject 
to  periodic  revision  by  the  judge  and  other  officials,  for  the  purpose 
of  deciding  when  the  condemned  will  be  readapted  to  the  freedom 
of  civil  life.  On  one  point  the  arbitrary  power  of  the  judge  is 
not  admissible.  It  is  in  regard  to  procedure,  which  forms  a  real 
guarantee  against  possible  errors  and  surprises  for  the  citizen 
who  appears  in  the  courts  —  for,  as  has  already  been  said,  pro- 
cedural law  is  the  law  of  the  honest,  who  may  by  mistake  or 
malice  be  suspected  of  crime,  while  penal  law  is  the  law  of  the 


478  PRACTICAL  REFORMS  [§  315 

dishonest,  that  is  to  say,  it  is  applied  only  to  those  who  are  proved 
dishonest.  This  proves  that  the  classical  individualists  are  wrong 
in  accusing  the  positive  school  of  wanting  to  destroy  the  guarantees 
of  personal  liberty  in  penal  procedure.  As  far  as  the  real  and 
essential  guarantees  (and  not  the  Byzantine  nullities,  valueless 
for  individual  protection  and  useful  only  as  a  means  of  delay) 
are  concerned,  we  demand  and  require  that  the  liberty  of  every 
citizen  be  assured.  But,  society,  as  I  have  already  said,  must 
be  equally  protected. 


CHAPTER  IV 

THE   JURY 

Advantages  and  disadvantages  of  the  jury  as  a  political  institution.  The  jury 
from  the  standpoint  of  psychology  and  sociology.  Abolition  of  the  jury 
for  the  common  crimes.     The  most  urgent  reforms. 

§  316.    Positivistic  Abolition  of  the  Jury  System. 

Knowledge  suJBSciently  scientific — such  is  the  principle  which 
must  govern  this  fundamental  reform  of  the  penal  judiciary  and 
which  entails  the  abolition  of  the  jury  system.  Its  suppression 
in  the  case  of  common  crimes,  together  with  a  better  choice  of 
jurors,  less  subjected  to  influences,  is  the  last  of  the  principal 
reforms,  which  the  positive  school  at  present  demands  as  essential 
to  true  penal  justice. 

§  317.    Arguments  in  Favor  of  the  Jury  System. 

The  principles  of  liberty  are  invoked  to  preserve  the  jury 
systems.  But  with  a  scientific  question,  such  as  penal  justice,  no 
democratic  or  aristocratic  ideal  can  be  involved;  the  test  is  scien- 
tific capacity.^    Theodore  Jouffroy,  present  at  a  lecture  against 

^  It  is  of  interest  to  recall  that  in  the  letters  of  Carrara,  published  by  his  son 
at  Lucca,  in  May,  1891,  at  the  unveiling  of  his  monument,  there  is  the  following 
statement,  "I  expressed  as  early  as  1841  my  feeling  on  the  jury  in  the  'Annales 
della  giurisprudenza  toscana,'  where  I  said  that  criminal  justice  was  becoming  a 
lottery.  The  scales  had  been  taken  from  the  hands  of  justice  to  substitute  an  urn. 
That,  I  think,  is  the  radical  vice  of  the  jury  system.  Perhaps  all  the  other  defects 
can  be  eradicated  by  a  more  reasonable  law,  but  this  vice  is  innate  and  inseparable 
from  the  jury  —  it  destroys  the  uniformity  of  punitive  justice  —  it  is  a  great  evil 
—  it  can  be  found  in  judges,  among  the  severest  and  the  most  clement,  but  in  the 
last  analysis,  they  base  their  decision  on  juridical  reasoning,  and  their  decisions  do 
not  vary  to  any  great  extent.  An  intelligent  and  experienced  attorney  for  the  defense 
can  always  foretell  the  fate  of  his  client  with  some  degree  of  probability.  But, 
with  a  jury,  every  prediction  is  rash  and  deceptive,  for  they  base  their  decision 
on  sentiment.  And  nothing  is  more  capricious  and  changeful  than  sentiment. 
Fortune  smiles  upon  the  accused;  and  the  names  which  come  from  the  jury  wheel 
are  those  of  men,  who  find,  in  themselves  and  in  the  temptations  to  which  they 
have  been  subjected,  excuses  for  the  fault  of  the  accused,  or  others,  who  having 
seen  how  easy  it  is  to  lie,  distrust  the  witnesses  for  the  State.  Should  fortune  be 
against  the  accused,  then  if  he  is  accused  of  theft,  the  jury  wheel  turns  out  the 
names  of  the  wealthy,  who  constantly  complain  of  the  deprivations  of  which  they 
are  victims;   or,  if  he  is  accused  of  some  attempt  upon  the  chastity  of  a  woman, 

479 


480  PRACTICAL  REFORMS  [§  317 

the  jury  system  by  Carmignani,  exclaimed,  "Your  logic  is 
perfect,  but  you  are  destroying  liberty."  Without  inquiring 
whether  liberty  is  possible  without  logic,  the  fact  is  undeniable 
that  juries  are  too  easily  influenced  by  politics  not  to  open  the 
door  to  onesided  views  and  declamations.  This  gives  rise  to 
enthusiasm  in  its  favor,  while  the  criminal  sociologist  takes  a 
very  different  point  of  view.  Just  prior  to  the  upheaval  in  France, 
philosophers  and  jurists  favored  the  estabhshment  of  an  inde- 
pendent judiciary,  but  the  French  Revolution,  full  of  defiance 
against  aristocracy  and  all  social  castes,  and  enthusiastic  for  the 
omnipotence  and  omniscience  of  the  people,  attacked  this  tend- 
ency and  instituted  the  jury  system.  While  it  tried  to  reinstate 
classical  antiquity  in  the  poUtical  order,  in  the  judicial,  it  cham- 
pioned the  Enghsh  institution,  which  the  Athenians  and  Romans, 
and  some  medieval  European  peoples  had  known  in  an  embryonic 
state.  It  looked  upon  it  as  a  means  by  which  the  people  in 
dispensing  its  own  justice  would  have  no  tyranny  to  fear.^  The 
jury  system  would  ensure  the  sovereignty  of  the  enfranchised 
people,  representing  the  conscience  of  the  country  and  substituting 
popular  good  sense  and  good  heart  for  the  pedantic  doctrine  of 
men  grown  old  in  study  and  prejudiced  by  caste.  It  was  too 
much  in  accord  with  the  reigning  ideas  not  to  be  adopted.     It  is 

then  the  jury  is  composed  of  men  who  love  their  daughters  tenderly  or  are  jealous 
of  their  wives;  and  so  it  goes.  The  chance  of  the  wheel  is  much  more  important 
than  talent  or  its  lack  in  the  lawyer.  Furthermore,  trickery  is  of  more  avail 
than  knowledge.  At  Massa,  I  defended  a  man,  who  had  murdered  his  wife's 
lover  in  full  day  in  a  crowded  restaurant.  I  found  out  which  of  the  jury  were 
single  and  which  married,  challenging  the  former,  and  I  won.  That  is  the  intrinsic 
vice  of  the  jury  system  and  legislation  cannot  cure  it." 

1  Tissot,  "Du  droit  penal"  (Paris,  1880),  Vol.  II,  p.  461.  There  are  three 
principal  forms  of  juries:  the  Roman,  the  feudal,  which  means  a  judgment  by 
one's  peers,  to  insure  impartiahty  by  the  social  equality  between  the  judges  and 
the  judged;  and  the  English  (badly  imitated  in  Europe),  which  was  the  judg- 
ment of  witnesses.  They  finally  became  not  only  the  definitive  judges  (in  the 
petit  juries)  but  decided  in  the  grand  jury,  the  question  of  prosecution.  Thus 
the  English  jury  exercises  complete  judiciary  sovereignty  in  prosecution  and 
conviction  for  crimes  and  misdemeanors.  Its  verdict  must  be  unanimous  (and 
its  deUberation  more  or  less  spontaneous),  when  the  accused  pleads  not  guilty, 
for  there  is  no  jiuy,  if  he  confesses.  The  jury  can  recommend  the  defendant  to 
the  mercy  of  the  court,  or  find  that  he  is  guilty  of  another  crime  than  that  of  which 
he  was  accused.  These  guarantees,  together  with  long  historical  usage,  lessen, 
in  the  case  of  the  English  jury,  the  harm  done  by  lack  of  scientific  capacity,  al- 
though it  is  not  done  away  with.  To  this  vice  is  added  the  quality  of  class  legisla- 
tion (the  inverse  of  the  feudal  system),  for  women  and  laborers  are  excluded 
from  English  as  from  Continental  juries.  See  De  la  Grasserie,  "Origines,  evolu- 
tion et  avenir  du  jury,"  R.  I.  S.  (July,  1897);  Nunzio,  "Genesi  dell'  istituzione 
del  giuri,"  in  "Filangieri"  (1898),  p.  481, 


§318]  THE  JURY  481 

a  striking  example  of  the  organic  connection  between  social  and 
political  conditions,  and  philosophical  ideas  and  juridical  systems. 
If  the  jury  system,  brought  over  to  the  Continent,  was  reduced, 
despite  the  so-called  improvements  mentioned  by  Bergasse  in  a 
report  to  the  Constituent  Assembly  on  14th  August,  1789,^  to  a 
very  different  institution  from  the  English,  both  in  the  method 
and  object  of  its  work,  it  still  enjoyed  a  sufficiently  marked  and 
seductive  aspect  to  assure  it  a  mass  of  admirers,  notwithstanding 
its  unsatisfactory  results.     Many  were  the  remedies  suggested. 

§  318.  The  Jury  System:  Its  Advantages  and  Disadvantages. 
As  the  jury  is,  however,  a  legal  institution,  we  must  examine 
its  advantages  and  disadvantages,  not  only  from  a  political 
point  of  view,  but  also,  and  more  particularly,  from  a  juridical 
point  of  view,  in  order  to  decide  which  are  the  greater.  Its 
political  advantages  diminish  singularly  at  the  thought  that,  no 
matter  how  great  a  recognition  of  the  sovereignty  of  the  people 
the  jury  may  be  (and  many  doubts  have  been  expressed  on  this 
score,'^)  its  actual  power  is  small  because  of  the  practical  limita- 
tions imposed  upon  it.  First,  class  defense  in  criminal  justice 
is  not  abolished  by  the  jury,  for  every  successive  reform,  above 
all  in  Italy,  has  excluded  the  popular  and  heterodox  classes  from 
the  jury  list.  As  a  result,  in  Italy  and  elsewhere,  the  jury  repre- 
sents not  so  much  the  sovereignty  of  the  people  as  the  legal  sov- 
ereignty of  the  middle  class.  Furthermore,  as  EUero  points  out, 
the  essential  distinction  between  a  juryman  and  a  judge  is  that 
the  former  is  selected  by  choice  and  the  latter  by  appointment  or 
election.  Consequently,  every  man  who  is  a  member  of  the 
citizen  body  and  possesses  civil  and  political  rights,  can,  accord- 
ing to  the  spirit  of  this  institution,  cast  his  vote  without  restriction 
in  all  cases,  civil  and  penal,  petty  and  serious,  not  only  in  defini- 
tive but  in  interlocutory  measures.  And  yet  the  recognition  of 
the  absurd  results  obtained  by  public  assemblage  has  brought 
about  restrictions  of  all  kinds  upon  the  principle  from  which  the 
jury  system  emanated. 

As  a  political  institution,  the  jury  is  practical  only  when  its 
fundamental  principle  is  almost  destroyed.  On  the  subject 
of  the  jury  system  Erio  Sala'  made  a  true  statement  of  our 

1  Erne,  "Trait6  de  I'mstruction  criminelle"  (Paris,  1858),  Vol.  Ill,  §  693. 

*  Pessina,  "Opuscoli  di  diritto  penale,"  p.  296. 

»  Sola,  "Sull'  istituto  della  giuria"  (Modena,  1875),  p.  45. 


482  PRACTICAL  REFORMS  [§  319 

position  when  he  said  that  we  always  fell  into  the  absurdity 
of  placing  the  judge  to  guard  the  jury  and  the  jury  to  guard 
the  judge.  Pessina^  also  pointed  out  our  distrust  of  juries, 
as  evidenced  by  judicial  surveillance.  We  can  add  that  on  the 
Continent,  the  jury  further  fails  to  realize  the  sovereignty  of 
people  even  more  than  in  England,  where  it  can  recommend 
mercy,  censure,  and  make  accessory  modifications.*  And  so, 
to  JouflFroy  and  those  who  with  him  hold  that  the  jury  is  the 
advance  guard  of  our  freedom,  we  can  reply,  that  either  the 
government  is  tyrannical  and  thus  the  juries  know  nothing  of 
liberty,  as  was  the  case  in  England  from  the  reign  of  Henry  VIII 
to  that  of  James  II,  and  "the  jury,  when  power  was  corrupt  and 
the  judge  vile  and  intimidated,  was  no  great  help  to  liberty," 
or  else  the  government  is  hberal  and  the  judge  independent, 
above  all  if  given  the  requisite  guarantees.'  History  shows  that 
very  despotic  governments  have  accepted  the  jury  system.  There 
were  juries  in  Northern  Italy  under  Napoleon  in  1815,  in  Bourbon 
Naples  in  1820,  and  in  Lombardy  and  Venetia  under  the  Austrian 
regime  in  1849.  Russia  refuses  trial  by  jury  to  political,  but 
permits  it  for  ordinary,  criminals.  Italy  to-day,  due  to  a  political 
reaction,  has  wdthdrawn  a  large  number  of  ordinary  *  and  politico- 
social  offenses  *  from  the  jury.  Thus  the  jury,  as  a  hberal  and 
pohtical  institution,  is  never  found  where  it  is  needed,  or  else  is 
found  to  be  powerless  and  useless. 

§  319.  The  Jury  as  a  Juridical  Institution. 
In  England,  however,  the  jury  is  looked  upon  as  a  juridical 
body.  It  is  in  this  hght  that  it  should  be  examined.  There  are 
two  great  advantages  attributed  to  it.  The  first  is,  its  "moral 
judgment,"  which  perhaps  corresponds  to  the  "aequitas"  of  the 
Romans.  Law,  it  is  said,  has  always  a  certain  rigidity  and  help- 
lessness, because  it  looks  to  the  future  and  is  founded  on  the  past. 
When,  therefore,  facts  and  circumstances  unforseen  by  the  legis- 
lator arise,  it  is  impossible  for  the  judge  to  apply  the  same  positive 
rules  to  them.  An  incessant  and  rapid  progress  takes  place  in 
human  society,  with  which  it  is  impossible  for  penal  laws  to  keep 

1  Pessina,  "  Opuscoli  di  diritto  penale."  p.  297. 

*  See  examples  in  Mittennaier. 

*  Tolonsei,  "Dirittx)  e  procedura  penale,"  3d  ed.,  (Padua,  1875),  §  2056;   and 
Scda,  "Sull'  istituto  della  giuria." 

*  By  an  illegal  measure  inserted  in  a  decree  for  the  coordination  and  applica- 
tion of  the  penal  code.  '  By  the  exceptional  laws  of  1894  and  1898. 


§319;]  THE  JURY  483 

step,  even  if  the  Bavarian  example  is  followed  and  the  code 
changed  with  every  generation,  or  the  French,  where  a  series  of  spec- 
ial laws  tends  to  ameliorate  the  Code  Napoleon.  However  great 
the  foresight  and  prescience  of  the  legislator,  the  infinite  diversity  of 
human  nature  can  never  be  encased  in  the  finite  number  of  articles, 
more  or  less  casuistic,  of  a  penal  code.  This  is  the  trouble  that 
the  jury  must  remedy.  The  people,  who  judge  by  an  uncon- 
trolled vote,  can  cure  the  imperfection  of  the  statutes  by  a  verdict. 
As  sovereign  judge,  it  can  temper  the  "summum  jus"  by  free 
interpretation,  even  contrary  to  the  written  law. 

The  second  juridical  advantage  of  the  jury  lies  in  the  fact  that 
the  jurors  follow  in  their  verdict  "intimate  conviction,"  "the  still 
small  voice  of  conscience,"  or  "natural  instinct"  rather  than  the 
refined  and  artificial  tests  of  the  professional  judge.  The  reaUty  of 
this  quality  in  the  jury  cannot  be  denied.  But  they  are  not  such 
rare  merits  that  it  is  not  better  to  fear  and  renounce  them.  The 
separation  of  the  political  and  judiciary  powers  of  the  State  is 
axiomatic.  It  is  only  an  application  of  the  universal  law  of  the 
division  of  labor.  We  can  admit  the  need  of  the  constant  reform 
of  penal  laws,  naturally  more  progressive  and  variable  than  civil 
law,  but  we  must  not  look  upon  such  reform  as  a  judiciary  problem. 
Although  a  certain  trend  of  ideas  favors  the  consideration  of 
amendment  of  statutes  as  a  legal  duty,  still  we  believe  that  the 
real  guard  of  our  Uberties  is  and  will  always  be  the  written  law. 
It  is  sufficient  to  recall  that  Socrates  and  Phocian  were  condemned 
to  death  by  the  tribune  of  Heliasts,  who  "by  using  and  abusing 
a  sovereign  judicature  became  a  legislative  hydra  inventing 
crimes  and  punishments  at  will."  ^  And  as  to  the  individualiza- 
tion of  legislative  precepts,  we  must  admit  a  procedural  system 
and  an  organization  systematically  inspired  by  the  positive 
method,  in  which  the  judges  really  enjoy  conditions  of  scientific 
capacity  and  independence  necessary  to  judge  the  man  and  not 
the  crime.  But,  such  a  power  given  to  a  popular  judge,  present- 
ing none  of  these  conditions,  and  to  a  system  inspired  by  entirely 
different  ideas,  cannot  fail  to  be  a  danger.  We  are  convinced, 
therefore,  that  the  quasi-sovereignty  with  which  the  jury  pro- 
nounced its  verdict  is  one  of  its  great  defects.  We  can  add  that 
its  power  to  make  law  a  dead  letter  does  more  to  lessen  the  zeal 
of  reformers  than  arbitrary  and  empirical  judiciary  expedients. 
And  further,  what  can  be  said  of  a  legislative  system,  which 
^  EUero,  "Opuscoli  criminali,"  p.  i57. 


484  PRACTICAL  REFORMS  [§319 

encourages  transgressions  of  its  laws?  Every  citizen,  who,  as  a 
juryman  or  in  his  observation  of  a  jury,  sees  that  law  can  be  aU 
but  disregarded,  loses  some  feeling  for  the  intangibility  of  social 
prescription.  The  knife  cuts  both  ways,  "It  is  better  to  find  the 
remedy  in  the  law  rather  than  in  the  subversion  of  the  law."  ^ 
We  cannot  persuade  ourselves  that  "the  intimate  conviction" 
as  shown  by  the  jury  is  a  merit  and  not  a  fault.  It  cannot  be 
denied  that  the  present  system  of  legal  evidence  does  not  fulfill 
its  duty.  It  must  be  admitted  that  the  only  source  of  certainty 
for  the  judge  is  the  moral  conviction  brought  about  by  the  testi- 
mony of  all  kinds  advanced  and  argued  before  him.  Of  course, 
if  penal  judgment  consisted  only  in  deciding  whether  a  certain 
action  is  good  or  bad,  we  beheve  that  the  individual  conscience, 
which  can  deal  with  exactly  such  moral  judgments,  is  sufficient. 
But  if  it  is  not  true  that  penal  justice  is  satisfied  with  certainty 
or  uncertainty,  and  truth  or  falsity  of  a  mass  of  facts,  we  beheve 
it  is  beyond  the  power  of  an  intimate  conviction  to  decide.  A 
scrutinizing,  intelligent  investigation  is  needed.  It  seems  to  be 
illogical  for  a  citizen  to  be  deprived  of  his  rights  and  society 
exposed  to  the  repetition  of  criminal  attacks  through  a  defective 
juridical  protection,  without  either  one  or  the  other  being  able 
to  ask  the  judge  the  reason  for  his  decision.  For,  our  opposition 
to  the  jury  and  its  instructive  verdict  is  based  not  only  on  its 
bUndness  but  on  its  irresponsibihty.  Carrara  is  right  in  believing 
that  as  long  as  a  "Guilty"  or  "Not  Guilty"  is  a  satisfactory 
verdict  of  the  law-makers,  the  substitution  of  a  professional  judge 
for  the  jury  is  bad,  but  we  agree  with  Carmignani  that  the  opinion 
of  a  reversible  judge  is  better  than  the  verdict,  which  he  calls  the 
judgment  of  a  Cadi.  Apart  from  the  necessity  in  a  penal  judgment 
such  as  we  see  it  of  giving  the  judge  every  means  to  follow  up  the 
consequences  of  his  sentence  in  the  treatment  of  the  convict,  the 
responsibility  of  every  public  functionary  is  too  axiomatic  to 
need  further  discussion.  If  the  jury,  as  a  representative  and  a 
part  of  the  people  whose  sovereignty  is  supreme,  can  be  neither 
appealable  nor  responsible,  it  is  none  the  less  true  that  this  conse- 
quence of  its  historical  and  juridical  origin  and  growth  must  be 
destroyed  as  dangerous. 

1  Bentham,  "Treatise  on   Civil  and  Criminal  Legislation,"  Vol.  Ill,  P.  IV, 
Chap.  V. 


§§320,321]  THE  JURY  485 

§  320.    The  Capital  Fault  of  the  Jury  System. 

The  advantages  to-day  attributed  to  the  jury  are  open  to 
discussion,  but  it  remains  for  the  positivist  school  to  mark  its 
capital  fault.  It  is  impossible  to  see  how  twelve  men,  chosen  by 
lot,  can  really  represent  the  popular  conscience,  which,  in  fact, 
often  protests  against  and  revolts  from  their  decisions.  But,  be 
that  as  it  may,  although  the  laws  have  violated  its  essential 
quality  by  numerous  restrictions,  it  still  remains  a  principle 
that  its  quality  as  a  part  of  the  people  gives  it  a  right  to  give 
judgment,  and,  as  the  entire  people  cannot  in  modern  States 
unite  in  assembly,  the  jury  system  is  founded  on  the  idea  that 
the  right  to  exercise  this  civil  prerogative  must  be  determined  by 
lot.  This  double  basis  of  the  jury  is  in  absolute  contradiction 
with  the  universal  rule  of  pubUc  and  private  life,  that  duties  be 
awarded  to  capacity  by  deliberation  and  choice.  This  rule  is 
but  another  aspect  of  the  inevitable  law  of  the  division  of  labor. 
It  may  sometimes  be  violated  in  practice;  but  no  institution  can 
be  formed  without  regard  to  it.  To  leave  the  gravest  social 
necessities  to  chance  is  to  deride  human  reason.  It  is  remarkable, 
that  while  in  the  petty  details  of  daily  life  recourse  is  had  to 
different  specialists  for  different  functions,  in  a  function  so  serious 
as  that  of  penal  judgment,  there  is  no  fear  of  disregarding  this 
rule.  The  jury  system  not  only  elevates  incapacity  to  the  height 
of  a  principle,  but  celebrates  incoherence,  for  no  method  can  be 
prescribed  for  a  beginner,  no  plan  outlined  for  the  exercise  of  a 
temporary  function  by  a  man  whose  aptitude  has  had  nothing 
to  do  with  his  choice.  Thus,  chance  presides  not  only  over  the 
election  of  the  jury,  but  over  its  characteristic  functions.  Those 
who  established  the  jury  system  did  not  fail  to  see  its  faults  and 
they  took  divers  expedients  to  lessen  these  harmful  consequences. 

§  321,  The  Insufficiency  of  the  Jixry:  Personal  Capacity. 
As  to  personal  capacity,  a  number  of  restrictions,  some  founded 
on  the  necessities  of  human  nature,  others  dictated  by  the  need 
of  avoiding  as  much  as  possible  certain  striking  absurdities  and 
which  are  consequently  often  arbitrary,  and,  finally,  those  dic- 
tated by  the  desire  to  exclude  certain  social  classes  (laborers  and 
women)  from  the  administration  of  penal  justice,  have  been 
established.  Hence,  the  system  of  categories  or  the  sheriffs' 
lists,   modified  by  different  laws,   are  all  practical  absurdities. 


486  PRACTICAL  REFORMS  [§321 

for  these  indirect  means  give,  at  most  (when  they  give  it  at  all) 
only  a  guarantee  of  general  and  presumptive  capacity,  and  not 
of  a  proven,  or  practically  proven,  or  special  aptitude  for  the 
functions  to  be  fulfilled.  They  are  petty  expedients  and  not  a 
radical  solution  of  the  problem.  Even  the  last  Italian  law  of 
1871,  which  (as  elsewhere  in  Europe),  with  its  categories,  closely 
resembles  the  system  of  PisaneUi,  demanding  as  it  does  assurances 
of  capacity,  has  not  effectively  remedied  the  trouble  since  it  has 
made  the  census  a  basis  of  the  jury's  duty  and  therein  Hes  the 
elemental  vice  of  the  jury  system,  because  it  has  made  the  ele- 
ment least  provided  with  necessary  knowledge  the  predominant 
power  for  pronoimcing  judgments.  But  the  proportions  of  the 
divers  elements  more  or  less  educated  which  go  to  form  the  jury 
need  not  occupy  us  long,  for  two  reasons  furnished  by  present 
day  sociology. 

The  assemblage  of  a  certain  number  of  persons  generally  in- 
teUigent  is  not  a  guarantee  of  the  definite  resulting  capacity  of 
the  assembly,  because  in  the  psychological  field  the  union  of 
individuals  never  gives,  as  it  would  seem  it  should,  a  total 
equal  to  the  individual  value  of  each  of  them.  An  intelli- 
gent group  need  not  be  a  result  of  the  grouping  of  intelligent 
individuals,  as  in  chemistry  a  Hquid  may  be  the  resultant  of  two 
gases.^  The  ignorant  elements  which  remain  hidden  in  isolated 
individuals,  unite,  and  through  an  effect  of  affinity  and  psycho- 
logical fermentation,  rise  to  the  surface.  The  ancients  felt  this 
fact,  and  expressed  it  in  a  maxim;  "senatores  boni  viri,  senatus 
autem  mala  bestia";  the  people  feel  it  when  they  say  that  the 

1  Garofalo,  in  "Un  giuri  dipersone  colte,"  A.  P.  II,  3,  p,  374,  reports  an  ex- 
periment made  on  a  group  of  distinguished  doctors,  among  whom  were  several 
famous  teachers,  who,  when  asked  to  give  a  verdict  on  a  man  accused  of  burglary, 
acquitted  him  in  spite  of  clear  proofs  of  culpability,  and  then  acknowledged  that 
they  had  been  deceived  —  and  they  were  men  of  great  culture  and  the  fact  simple 
and  well-proven.  So  what  can  be  said  of  ignorant  juries,  who  are  faced  with 
complicated  questions  which  raise  difficult  matters  of  legal  medicine?  See  anal- 
ogous observalions  by  Dorado,  in  "Impressioni  e  riflessioni  di  un  giurato,"  in 
the  "Scuola  positiva"  (15  March,  1893);  Grother,  "The  Psychology  of  a  Jury 
in  a  Long  Trial,"  in  the  "Medical  Legal  Journal"  (March,  1895),  p.  464;  Ajam 
"Monographic  d'un  jury  d'assizes,"  in  "  Archives  d'anthropologie  criminelle"  (15 
July,  1899).  The  addresses  of  district  attorneys  also  could  furnish  much  informa- 
tion about  the  workings  of  the  jury  system,  but  they  are  generally  content  with 
more  or  less  sincerely  defending  the  "  status  quo,"  as  the  judges  in  Beccaria's  day 
defended  torture  as  a  necessary  instrument  of  penal  justice.  See  Rigi,  "  II  guiri 
nei  discorsi  dei  procuratori  generali,"  in  the  S.  P.  (July,  1895).  For  a  Spanish 
work,  see  the  investigation  made  by  the  Department  of  Justice  and  outlined  in 
the  "Revista  general  de  legislacion  y  jurisprudencia "  (August,  1899). 


§322]  THE  JURY  487 

members  of  a  certain  social  group,  taken  one  by  one,  are  fine 
fellows,  but  that  collectively  they  are  rascals.  This  fact  is  found 
with  much  greater  certainty  in  juries,  assemblies,  and  congresses, 
fortuitous  and  inorganic  collections,  than  in  a  community  of 
judges  or  experts,  because  in  one  case  the  heterogeneity  of  psycho- 
logical elements  (such  as  ideas,  interests,  tendencies,  and  habits), 
is  more  marked  than  in  the  other.^ 

But  this  is  not  all;  juries,  even  when  constituted  by  persons 
whose  intellectual  capacity  is  presumable,  will  never  be  able 
to  exercise  judicial  functions  in  a  satisfactory  manner,  because 
it  must  be  governed  according  to  an  inferior  form  of  intel- 
lectual evolution.  If  we  consider  the  human  mind  in  its  pro- 
gressive development,  whether  individual  or  social,  we  find 
three  diflFerent  states  called  intuition,  perception,  and  reason, 
whose  processes  are  very  different,  not  in  their  essence,  but  in 
the  manner  of  their  sociological  function;  and  they,  too, 
are  subject  to  the  general  law  of  evolution,  passing  continually 
from  the  simple  to  the  complex.  Now  without  being  able  to 
take  up  much  space  here  with  the  considerations  of  psychology, 
it  is  evident  that  the  jury  can  only  be  led  by  intuition  or,  very 
rarely,  by  perception  —  that  is  to  say,  by  the  unconscious  habit 
of  thinking  in  a  definite  manner,  or  by  a  natural  perspicacity 
above  vulgar  prejudices.  But  reason,  the  highest  form,  is  im- 
possible for  it.  It  cannot  be  reconciled  with  the  accidental  and 
inorganic  union  of  general  and  varied  aptitudes;  it  can  be  found 
only,  on  the  other  hand,  in  a  homogeneous  corps  of  judges.  Pes- 
sina  was  right  in  saying  that  groups,  however  eminent  their 
components,  with  the  single  exception  of  groups  of  jiuists,  always 
represent  the  manner  of  judging  in  the  ordinary  way,  and  not 
that  power  of  criticism  that  the  mind  requires  when  it  is  con- 
stantly exercised  in  the  examination  of  legal  proofs. 

§  322.    The  Insufficiency  of  the  Jury:  The  Incoherency  of  Its  Acts. 

As  to  the  incoherency  of  the  jury's  acts,  it  has  been  thought 
possible  to  remedy  this  defect,  partially  at  least,  by  distinguishing 
law  and  fact,  to  repeat  the  maxim  of  Montesquieu,  that  but  one 
object,  a  fact,  could  be  submitted  to  the  judgment  of  the  people, 

1  Of  this  fundamental  fact,  which  we  have  called  "collective  psychology," 
Sighele  made  a  convincing  application  treating  another  subject  in  "La  foule  crimi- 
nelle."  See  also  ante,  and  Worms,  "Psychologic  collective  et  psychologic  indi- 
vidueUe,"  R.  I.  S.  (April,  1899). 


488  PRACTICAL  REFORMS  [  §  322 

but  without  even  remarking,  as  did  Hye  Glunek,^  that  the 
verdict  represents  a  division  and  reduplication  of  the  judicial 
problem  which  should,  on  the  other  hand,  remain  indivisible  like 
the  syllogism  Ln  which  it  is  summed  up.  It  is  now  recognized 
that  the  Arch-Chancellor  Cambaceres  was  right  in  saying,  during 
a  discussion  of  the  Council  of  State,  that  the  distinction  between 
fact  and  law  is  imaginary.  Not  only  in  the  positivist  system  of 
penal  procedure,  where  a  knowledge  of  criminal  statistics  and 
anthropology,  besides  legal  knowledge,  is  necessary,  but  also  in 
the  existing  systems,  the  jmy  deals  with  the  crime.  That  is  to 
say,  to  quote  Binding,^  with  a  juridical  fact  and  not  simply  a 
material  fact.  The  judge  deals  with  the  punishment,  but  law 
and  fact,  in  a  penal  process,  are  as  inseparable  as  the  face  and 
reverse  of  a  coin  —  as  form  and  substance  —  even  when  care  is 
taken,  as  in  the  different  legislative  changes  effected  in  Italy,  to 
avoid  as  far  as  possible  juridical  terms.  Even  admitting  the  pos- 
sibility of  such  a  distinction,  logic  and  experience  unite  to  deny 
the  assertion  made  by  a  follower  of  Beccaria,  "In  the  apprecia- 
tion of  facts  ordinary  intelligence  is  preferable  to  science,  common 
sense  to  the  highest  intellectual  faculties,  the  popular  to  scientific 
knowledge."  '  Pessina  is  entirely  right  in  remarking  that  the 
work  of  a  judge  concerning  the  fact  which  gives  rise  to  a  penal 
judgment  does  not  consist  simply  in  an  immediate  perception  of 
facts  for  which  simple  good  sense  might  suffice,  but  is  a  difficult 
work  of  critical  reconstruction.*  The  natural  and  organic  dif- 
ferences between  penal  and  civil  law  must  be  insisted  upon. 
While  generally,  in  civil  litigation,  the  fact  has  an  accessory 
character,  and  the  whole  question  depends  upon  the  apphcation 
of  the  law  to  the  facts  which  can  be  admitted  by  both  parties,  in 
trials  of  a  penal  order,  the  greatest  difficulty  Ues  in  the  discovery 
or  appreciation  of  the  facts.  To  this  appreciation,  depending 
on  the  evidence,  the  inferior  form  of  common  sense  and  per- 
ception does  not  suffice;  it  needs  the  aid  of  the  critical  sense  of 
study  and  science.  It  can  well  be,  as  Ellero  said,  that  "in  the 
penal  process  the  question  of  fact  is  much  more  difficult  than 

*  Hye  Glunek,  "Schwurgericht,"  1864. 

*  Binding,  "Die  drei  Gnmdlagen  der  Organisation  im  Strafgericht"  (Leipsig, 
1876). 

*  HHie,  "Traite  de  I'instruction  criminelle,"  §593,  p.  228;  Brusa,  "Sul  giuri," 
in  the  "Rivista  penale"  (March,  1882);  Carrara,  "Reminiscenze"  (Lucca,  1883), 
p.  361. 

*  Peasina,  "Opuscoli  criminali"  (Naples,  1894),  p.  300. 


§323]  THE  JURY  489 

that  of  law."  ^  Daily  experience  has  given  so  many  striking 
proofs  of  the  incapacity  of  the  jury  for  criminal  criticism  merely 
as  far  as  facts  are  concerned,  that  it  is  useless  to  insist  further. 

§  323.  The  Jury  Considered  Psychologically  and  Sociologically. 
More  conclusive  still  are  the  disadvantages  of  the  jury  system 
resulting  not  from  exceptional  circumstances  (incidental  to  the 
best  of  institutions)  but  from  the  laws  of  psychology,  and  which, 
therefore,  cannot  be  avoided  by  expedients  of  procedure.  Science 
does  not  deal  with  facts,  but  laws.  As  far  as  intuition  or  per- 
ception is  concerned,  on  the  contrary,  the  active  impression  of 
a  present  fact  is  the  sole  preoccupation,  without  any  study  of 
hidden  ties,  which  bind  it  to  a  general  law.  Hence,  the  inevitable 
tendency  of  the  jury  to  allow  itself  to  be  influenced  by  isolated 
events,  guided,  as  it  is,  by  a  sentiment  of  compassion  if  much 
time  has  elapsed  since  the  crime,  or  governed  by  a  more  or  less 
disguised  feeling  of  vengeance,  if  class  interest  or  a  short  interval 
has  not  allowed  the  first  impression  of  the  misdeed  to  cool.  Hence, 
shortsighted  judgments,  governed  by  passion,  which  cannot  be 
approved  by  the  people.  This  predominance  of  sentiment  over 
reason,  which  is  the  fundamental  note  of  the  jury,  is  first  of  all 
shown  by  the  nature  of  the  arguments  of  counsel.  There  is  no 
need  for  profound  philosophical  or  juridical  thought;  there  is 
nothing  to  which  it  could  be  applied.  As  to  criticism  of  evidence 
or  logic,  they  need  not  be  considered.  What  is  of  capital  impor- 
tance is  oratorical  charm.  Thus,  science,  not  only  criminal,  but 
medical  and  anthropological,  is  not  found  in  the  criminal  courts 
of  to-day,  for  it  is  necessary  to  place  the  most  difficult  scientific 
problems  within  the  sphere  of  popular  knowledge,  with  the  cer- 
tainty that  chance  and  external  circumstances  alone  will  decide 
the  question.  This  unfortunate  position  of  science  is  inseparable 
from  the  existence  of  the  jury  system,  as  is  shown  by  the  difficulties 
arising  from  the  universal  desire  to  regulate  the  position  of  experts 
in  criminal  trials.  But  the  criminal  courts  are  not  only  unpro- 
pitious  for  science,  but  also  so  abuse  certain  of  its  results  that  it 
is  almost  forced  to  disown  them,  because  the  jury  system  has 
destroyed  their  natural  qualities.  Hence  the  discredit  attached 
to  scientific  progress  and  the  diffidence  with  which  it  is  received, 
even  though  it  can  illume  the  blindness  of  penal  justice.  Another 
disadvantage  of  the  jury  system  is  that  the  verdict  cannot  faith- 
1  EUero,  "Opiiscoli  criminali,"  p.  371. 


490  PRACTICAL  REFORMS  [§324 

fully  represent  the  sum  of  individual  convictions.  The  jury 
which  in  the  Italian  system  is  exposed  during  the  recesses  of  the 
court  to  outside  influences,  is,  moreover,  even  in  England,  sub- 
jected to  influences  in  the  court  room,  whether  the  law  demands 
a  unanimous  verdict,  or  whether  it  is  satisfied  with  a  majority. 
The  result  has  been  a  proposal  to  make  the  deUberations  of  the 
jury  public.^ 

§  324.    Disadvantages  of  the  Jtuy  System :  The  Tendency  of  the 
Professional  Judge  to  Convict. 

We  have  now  come  to  a  point  where  it  seems,  without  having 
recourse  to  a  mass  of  facts  and  figures,  which,  however,  form  an 
eloquent  confirmation  of  our  opinion,  that  the  disadvantages 
of  the  jury  system,  and  above  all  its  juridical  disadvantages, 
should  weigh  more  than  its  advantages  in  the  logical  scale. 

As  a  corroboration  of  what  we  have  said,  however,  we  will  give 
two  final  observations.  The  first  consists  in  the  most  serious 
objection  made  to  professional  judges.  The  other  is  based  on 
the  law  of  sociology.  It  is  argued  that  a  professional  judge, 
accustomed  as  he  is  to  judge  criminal  actions,  is  irresistibly  led 
to  look  upon  every  accused  as  guilty,  and  to  disregard,  so  to 
speak,  the  presumption  of  innocence,  even  when  justice  insists 
upon  it  most  emphatically .^  Psychological  study  shows  that,  as 
a  result  of  the  universal  law  of  the  course  of  least  resistance, 
there  is  a  conversion  of  the  conscious  into  the  unconscious,  which 
results,  as  it  were,  in  a  definite  polarization  of  individual  faculties 
and  acts,  which  Ferrero  called  the  ideo-emotional  arrest.'  This 
objection,  founded  on  the  organic  and  psychic  nature  of  man, 
has,  it  is  true,  a  certain  value;  but  not  enough,  it  seems,  to  be 
able  to  counterbalance  the  faults  of  the  jury  system;  and  that 
for  many  reasons.  First  of  all,  putting  aside  the  exceptions 
caused  by  the  defects  of  the  actual  organization  and  the  intel- 
lectual insuflBciency  of  the  judiciary,  it  must  be  admitted  that 
when  an  accused  is  finally  brought  to  trial  the  rigorous  course 
of  examinations  in  the  preparation  for  it  appreciably  reduces  the 

1  Carrara,  "Opuscoli  di  diritto  criminale,"  Vol.  IV,  op.  HI. 

*  See  Sard,  "La  psychologie  du  juge,"  in  the  "Archivio  di  psichiatria"  (1894), 
XV,  29;  De  Lano,  "L'&me  du  juge"  (Paris,  1899),  and  an  essay,  "L'anima  dei 
magistrati"  (professional  defonnations)  by  the  positivist  Ciraolo,  in  the  "Revue 
politique  et  litteraire"  (June,  1899). 

'  Ferrero,  "I  simboli"  (Turin,  1893),  last  chapter;  or  better,  in  the  French 
translation,  "Les  lois  psychologiques  du  symbolisme"  (Paris,  1895),  p.  294. 


§325]  THE  JURY  491 

probability  of  his  innocence,  and,  in  the  second  place,  this  tend- 
ency of  judges  is  partially  paralyzed  by  the  pubUcity  of  the 
trial,  and  will  be  more  paralyzed  still  (as  Ciraolo  says)  by  a  pub- 
licity in  the  preparation  of  the  trial  such  as  exists  in  Geneva,  and 
such  as  has  been  recently  enacted  in  France.  The  proof  of  this 
is  that  the  most  marked  facts  cited  in  favor  of  this  objection 
relate  to  past  times,  or  to  the  preparation  of  present  trials. 

This  point  presents  an  interesting  historical  problem  —  the  co- 
existence of  a  complete  inquisitorial  system  which  considerably 
diminishes  individual  protection,  with  the  political  liberty  of  the 
Italian  Republics  of  the  Middle  Ages.  In  the  third  place,  Courts  of 
Correction  which  should  not  follow  this  custom  give  a  percentage 
of  acquittals  and  allowances  of  extenuating  circumstances  about 
similar  to  that  given  by  courts  in  which  there  are  juries.  If,  on 
the  other  hand,  the  disadvantage  of  the  tendency  of  the  judiciary 
to  condemn  is  to  be  feared,  the  jury  for  its  part  does  not  avoid 
the  no  less  dangerous  influences  of  popular  prejudice.  In  a  word, 
it  is  a  question  of  deciding  whether  the  predominance  of  social 
criteria  under  the  jury  system  is  preferable  to  that  of  personal 
and  class  criteria  under  the  judiciary,  provided  that  under  the 
latter  system  there  will  be  assurances  of  the  essential  conditions 
of  scientific  capacity  and  independence.  For  it  is  certainly  not 
the  guarantee  in  favor  of  the  individual  which  is  lacking  in  our 
day.  Reductions  and  remissions  of  sentence,  appeals,  certioraris, 
and  revisions,  which  singularly  lessen  (and  even  destroy  in  a 
rational  system  of  procedure  where  all  sentences  will  be  periodi- 
cally revised)  the  value  of  this  objection.  Every  one  who  sub- 
scribes to  this  objection  must  logically  favor  the  adoption  of  the 
jury  system  in  Courts  of  Correction,  for  why  should  a  number  of 
accused,  infinitely  larger  than  that  of  the  criminal  courts,  be 
deprived  of  the  alleged  guarantee  of  a  popular  verdict? 

§  325.    Disadvantages  of  the  Jury  System:  Psychologically  Unfitted  for 

Europe. 

If,  however,  the  value  of  this  objection  to  the  judiciary  is 
increased  by  reason  of  the  faults  which  the  bad  choice  of  the 
personnel  entails  upon  the  administration  of  justice,  we  shall  find 
a  much  greater  objection  shown  by  sociology  against  the  jury 
system,  transplanted  full  grown  into  Italy  and  into  France  by  the 
artificial  power  of  legislative  enactment.  The  natural  sciences 
have  shown  by  the  laws  of  natural  evolution  that  no  suitable  and 


492  PRACTICAL  REFORMS  [§325 

profitable  variation  is  possible  in  a  vegetable  or  animal  body- 
without  a  slow,  continuous,  and  opportune  preparation,  effected 
by  latent  organic  forces  and  exterior  circumstances,  because 
duration  does  not  respect  what  is  made  without  its  intervention. 
They  have  shown  that  inexorable  natural  laws  atrophy  every 
organ  which  survives  deprived  of  its  proper  function,  and  that 
consequently  no  new  organ  can  exist  if  its  existence  is  not  de- 
manded by  the  innovation  of  a  corresponding  function.  On  the 
basis  of  these  scientific  laws,  sociology,  which  considers  human 
society  as  a  natural  organism,  estabUshes  the  fact  that  no  social 
institution  is  truly  useful  and  durable  unless  it  is  natural,  that  is 
to  say,  the  necessary  effect  of  a  number  of  organic  and  psychic 
causes  existing  for  a  considerable  period  in  the  most  profound 
sources  of  the  life  of  the  people.  It  further  estabhshes  the  fact 
that  social  evolution  is  a  continual  passage  from  the  homogeneous 
to  the  heterogeneous,  and  that  consequently  its  organs  and  in- 
stitutions do  not  subdivide  or  multiply  except  through  the  activity 
and  multiplication  of  social  functions. 

If  this  principle  be  applied  to  the  jury  system,  it  is  observable, 
first  of  all,  that  it  did  not  make  its  appearance  on  the  Con- 
tinent of  Europe  through  the  temporal  development  of  the  ethnic 
and  historic  elements  of  the  different  peoples  (for  in  the  places 
where  there  should  be  some  trace  of  it  there  is  none  at  all),  but 
it  was  transplanted  by  legislative  act.  England  alone,  which  has 
the  good  fortune  to  possess  an  anti-symmetric  but  spontaneous  and 
ancient  social  and  political  edifice,  can  maintain  the  jury  system 
as  a  natural  product  of  its  people,^  consequently,  it  is  more  vital 
there  than  elsewhere.  In  England,  law  was  begun  and  has  grown 
with  the  people,  and  criminal  procedure,  above  all,  has  always  been 
based  on  the  strictest  relations  with  the  customs  and  the  social  and 
poHtical  state  of  the  nation.  But  if  European  countries,  which  with 
civilizations  differing  among  themselves,  have  imitated  more  or 
less  closely  the  English  jury,  detaching  it,  however,  as  Mitter- 
maier  said,  "from  the  natural  basis  of  the  institutions  and  princi- 
ples which  are  its  necessary  correlatives  in  England,"  ^  we  do 
not  hesitate  to  say  that  this  institution  is  one  of  those  which 
Spencer  would  call  false  membranes  in  the  collective  body,  with- 

*  And  yet,  even  in  England  the  jury  has  numerous  and  powerful  adversaries 
(from  Bentham  to  Brown)  as  noted  by  Van  den  Heuvel,  "Apologia  del  giurt  in 
Inghilterra,"  in  the  "Rivista  penale"  (June,  1887).  See  also,  "II  giuri  in  Inghil- 
terra"  (Citta  di  Castillo,  1887). 

*  Mittermaier,  "  Traite  de  la  procedure  criminelle  en  Angleterre,"  etc.  (Paris  68.) 


§326] 


THE  JURY  493 


out  physical  ties  to  the  rest  of  the  social  whole.  There  is  no 
terrible  consequence  to  be  feared  when  another  legislative  act 
deprives  society  of  this  institution  which  is  not  indigenous  and 
whose  essential  vices  have  been  shown;  vices  which,  preventing 
its  acclimation,  have  only  been  recognized,  in  France  for  example, 
after  a  century  of  constant  experiments.^ 

§  326.  Disadvantages  of  the  Jury  System:  Not  Evolutionary. 
In  regard  to  the  sociological  law  of  unity  of  organs  correspond- 
ing to  the  unity  of  functions,  it  seems  that  in  England,  where  the 
jury  and  the  judiciary  have  grown  side  by  side  and  interlaced, 
it  is  an  historical  phenomenon  which  is  in  nowise  contrary  to  this 
law,  for  these  two  institutions  present  in  their  diversity,  through 
the  admirable  cooperation  of  jury  and  judges  in  the  sentence, 
that  organic  unity  which  results  from  a  process  of  integration, 
which  Spencer  says  is  the  fundamental  note  of  evolution.  In 
Continental  countries,  however,  where  the  jury  has  been  attached 
by  simple  superposition  to  the  judiciary,  a  well  developed  organ 
of  social  function,  it  seems,  in  fact,  a  phenomenon  of  superfetation. 
If  it  is  argued  that  the  jury,  constituting  a  step  from  the  homo- 
geneous to  the  heterogeneous,  marks  in  that  a  further  step  in 

*  The  present  provisions  for  trial  by  jury  in  criminal  matters  are  as  follows: 
England,  Scotland,  Ireland,  and  Switzerland  used  juries  for  criminal  and  correc- 
tional matters.  France,  Italy,  Austria,  Istria,  Croatia,  Dalmatia,  Rhenish  Prussia, 
Alsace-Lorraine,  Bavaria,  Bohemia,  Gallicia,  Belgium,  Roumania,  Greece,  Portu- 
gal, Russia,  and  Malta  have  trials  by  jury  in  criminal  matters.  Spain  had  sus- 
pended it,  but  reestablished  it  in  1888.  For  details,  see  Torres  Campos,  "II  giuri 
in  Ispagna,"  in  the  "Rivista  penale"  (April,  1894).  Russia  does  not  allow  trial 
by  jury  for  political  offenses  or  for  rape,  resisting  arrest,  murder,  and  bigamy, 
which  are  tried  by  the  Court  with  the  assembly  of  class-representatives.  Prussia, 
Saxony,  Baden,  and  Wurtemberg  have  trial  by  jury  in  criminal  cases,  with  trial 
by  sheriffs  in  correctional  and  police  matters.  Denmark,  Sweden,  Finland,  and 
the  Canton  of  Tessin  have  trial  by  sheriffs.  Sweden  has  trial  by  jury  for  crimes 
of  the  press.  Holland,  Norway,  Slavonia,  Transylvania,  Poland,  Servia,  Croatia, 
and  Turkey  have  neither  trial  by  jury  nor  by  sheriff.  Hungary,  which  formerly 
employed  the  jury  system  for  political  crimes  and  those  of  the  press,  has  had  it 
for  ordinary  crimes  under  the  new  Code  of  Penal  Procedure  since  1st  January, 
1900.  See  "Questionnaire  pour  la  comparaison  des  statistiques  criminelles  Q(a) 
Methode  pour  la  preparation  de  statistique  criminelle;  (6)  Procedure  penale; 
(c)  Legislation  penale],"  in  the  "Bulletin  Instit.  intern,  statist."  (Rome,  1892),  VI, 
fasc.  2,  p.  161.  And  for  the  conditions  governing  the  choice  of  juries  in  different 
countries,  see  Nagles,  "Le  recrutement  du  jury  en  Belgique  et  dans  les  autres 
6tats,"  J.  T.  (4th,  5th  June,  1899).  There  is  discussion  to-day  of  introducing  the 
jury  system  m  the  Republics  of  Argentine  and  Cuba.  See  Aguirre,  "El  jurado, 
su  implantaci6n  en  la  RepubUca  Argentina,"  in  the  "Criminologia  modema" 
(1898),  I,  and  (1899),  VI;  Domingues.  "Del  juicio  per  jurados,"  id.  (1899),  V; 
"Revista  del  foro"  (Havana,  1903).  7,  8. 


494  PRACTICAL  REFORMS  [§326 

social  evolution,  a  distinction  should  be  made,  for  there  is  evolu- 
tion when  the  passage  from  the  homogeneous  to  the  heterogeneous 
forms  at  the  same  time  an  integration  by  assuring  the  organic 
unity  of  the  elements;  but  when  in  departing  from  the  normal 
laws  of  organic  nature  it  creates  disintegration  by  lessening  its 
unity,  it  must  end,  not  in  evolution,  but  in  dissolution. 

Division  of  labor,  which  has  produced  multiform  organs  and  func- 
tions in  the  zoological  scale,  as  well  as  in  the  field  of  political  econ- 
omy, science,  and  pubUc  and  private  administration,  constitutes  a 
source  of  change,  which  we  call  by  the  name  of  progress;  but  the 
passage  from  unity  of  form  to  multiplicity,  which  occurs  in  the 
maladies  of  animals  with  numerous  organic  changes,  as  well  as  in 
social  revolutions  with  a  series  of  extra-legal  institutions,  forms, 
on  the  contrary,  the  beginning  of  the  end.  Thus,  the  passage 
from  the  homogeneous  to  the  heterogeneous  effected  by  the  jury 
system  on  the  Continent  of  Europe  belongs  in  my  opinion  to 
social  pathology,  and  threatens  to  destroy  a  part  of  the  judicial 
organism,  if  the  hand  of  the  surgeon  does  not  interfere  in  time. 
Many  legislators  and  judges  have  not  yet  seen  this,  and  while 
some  have  treated  the  sick  institution,  others  have  put  it  on  a 
diet  by  continually  correcting  the  crimes  in  a  more  or  less  legal 
fashion  and  sending  them  to  tribunals  of  correction.  But  this 
is  not  all;  the  law  of  specialization  of  functions,  of  which  so 
many  examples  are  easily  found  in  biology  and  sociology,  makes 
every  organ,  to  the  degree  that  it  is  adapted  for  a  special  work, 
to  the  same  degree  unsuited  to  every  other  task.  Zoology  teaches 
that  the  organs  which  fulfill  special  functions  in  the  vertebrates, 
such  as  deglutition,  digestion,  secretion  of  humors,  or  oxygenation, 
are  confused  in  the  protozoics,  both  in  themselves  and  in  the  work 
which  they  perform.  Thus  sociology  teaches  that  if  a  man  could 
be  found  among  the  ancients  who  knew  at  the  same  time  physics, 
theology,  metaphysics,  and  politics,  and  among  savages  there 
are  men  who  are  at  the  same  time  warriors,  hunters,  fishers,  and 
architects,  among  civilized  people,  on  the  contrary,  the  physiolo- 
gist cannot  be  an  astronomer,  and  the  chemist  cannot  be  a  lawyer, 
for  each  workman  fulfills  his  special  duty.  The  jury  system  is  a 
direct  contradiction  of  this  law,  since  it  imposes  on  one  individual 
functions  very  different  and  distinct  from  those  which  he  habitually 
pursues. 

It  is  useless  to  object  that  the  franchise  violates  this  law 
of    specialization    of    functions,    for    we    must    distinguish    be- 


§327]  THE  JURY  495 

tween  rights  and  functions,  one  founded  on  necessity  and  the 
other  on  capacity.  The  franchise  is  an  elementary  right.  Judica- 
ture is  a  technical  function.  They  are  very  different,  not  only  by 
their  nature,  but  in  their  object.  The  voter  only  designates 
some  one  whom  he  thinks  endowed  with  certain  general  qualities. 
The  juryman  must  pronounce  a  verdict,  which  should  be  the  result 
of  a  very  complicated  critical  examination.  The  action  of  the 
voter  has  only  an  indirect  result;  and  furthermore,  the  voter 
merely  entrusts  some  one  whom  he  thinks  better  suited  than 
himself  with  the  fulfillment  of  the  duty.  The  action  of  a  jury- 
man, on  the  contrary,  has  a  direct  and  important  result,  and 
presupposes  a  special  and  recognized  capacity.  It  is  not  true, 
therefore,  notwithstanding  what  Carrara  says,  that  there  is  any 
inconsequence  "in  refusing  a  people  full  participation  in  the  exer- 
cise of  judicial  authority  when  the  institutions  of  the  Nation  give 
it  a  part  in  the  exercise  of  legislative  authority."  The  functions 
are  too  different.  Such  an  argument  would  only  be  logical  in 
upholding  the  popular  election  of  judges,  which  we  desire  in 
the  actual  period  of  transition  to  replace  subsequently  by  the 
choice  of  a  technical  personnel.  The  franchise,  the  right  of  every 
social  element  enjoying  juridical  life,  is  comparable  to  the  phe- 
nomenon of  general  assimilation  effected  by  every  histological 
element  enjoying  organic  life  in  the  animal  or  vegetable  body, 
for  the  franchise  is  nothing  but  the  general  observation  of  the 
elements  necessary  to  the  life  of  the  collective  organism  which 
is  soon  attacked  by  cachexia  when  political  apathy  does  not 
allow  it  to  form  blood  and  be  nourished.  It  is  not  a  technical 
function  in  the  strict  sense  of  the  word,  which  can  be  compared 
to  the  administration  of  justice. 

327.    The  Necessity  of  the  Abolition  of  the  Jury  System  in  the  Trial 
of  Ordinary  Crimes. 

History  and  sociology  show,  therefore,  that  the  jury  system 
is  a  retrograde  step.  It  is,  as  EUero  said,  a  return  to  the  barbarous 
times  of  the  Middle  Ages  and  represents  in  penal  justice  a  phase 
different  and  distant  from  maturity  and  perfection.  And,  yet, 
positivists  must  (for  there  is  no  ill-wind  but  brings  good  to  some 
one)  show  with  more  evidence  the  illogical  and  dangerous  conse- 
quences to  which  popular  good  sense  has  naively  brought  some 
of  the  theories  of  classical  penal  law.  Examples  of  this  are  given 
by  the  finding  of   extenuating  circumstances  as  a  protestation 


496  PRACTICAL  REFORMS  [§  327 

against  the  death  penalty,  or,  what  is  worse,  against  the  excessive 
zeal  of  the  prosecutor,  duress  allowed  as  a  defense  to  even  petty 
thefts,  homicides,  or  in  aid  of  a  third  party.  It  has  shown,  on 
the  other  hand,  the  points  on  which  common  sense  itself  has 
shown  the  necessity  of  reform  in  other  penal  theories  in  accordance 
with  the  actual  demands  of  the  positive  school,  for  example,  by 
acquittals  under  unwritten  law  or  for  political  crimes  or  violation 
of  censorship,  and  also  in  more  rigorous  verdicts  against  habitual 
delinquents.^  Logic,  therefore,  leads  to  an  irresistible  conclusion 
that  the  jury  system  does  not  meet  the  requirement  of  all  judicial 
institutions.  To  bring  our  scientific  inductions  to  the  realm  of 
practice,  the  jury  system  must  be  abolished  in  the  trial  of  ordinary 
crimes,  although  first,  the  reforms  of  the  judiciary  to  insure  its 
capacity  and  independence  must  be  effected. 

As  it  is  easier,  however,  to  institute  than  abolish  social  in- 
stitutions, there  is  but  small  chance  that  the  hopes  of  science 
will  be  realized,  in  spite  of  all  the  opposition  which  experience 
has  aroused  against  the  jury  system  on  all  sides  and  from 
divers  causes.  In  conclusion,  therefore,  we  will  outline  some 
proposed  reforms,  which,  among  the  many  advanced  independ- 
ent of  those  already  cited,  seem  to  bear  more  directly  on  the 
organic  faults  of  the  jury.  These,  while  not  fully  corrective 
(which  seems  impossible  of  attainment),  will  do  much  in 
avoiding  its  gravest  and  most  constant  faults.  Although  the 
distinction  between  common  and  pohtical  crimes  and  those 
of  the  press  seems  neither  scientific  nor  real,  provided  that 
the  so-called  political  crimes  are  not  misdeeds  (such  as  the 
expression  of  ideas,  etc.)  or  committed  under  the  influence  of  a 
noble  passion  by  pseudo-criminals  (evolutive  criminality  in  atavic 
forms),  it  is,  nevertheless,  useful  to  preserve  the  jury  in  political 
crimes  and  those  of  the  press  and  social  interest,  notwithstanding 
that  in  the  last  case  the  verdict  may  be  influenced  by  class  interest, 
which  cannot  be  combated  except  by  giving  laborers  a  large 
place  on  the  jury,  from  which  they  are  excluded  to-day. 

As  long  as  the  judiciary  is  not  entirely  protected  from  the  more 
or  less  direct  pressure  of  the  executive  power  (impossible  without 
radical  reforms  and  a  certain  predominance  of  the  political  impor- 
tance of  the  jury),  it  is  the  part  of  wisdom  to  entrust  to  it  the 
judgment  of  some  infractions  which  too  often  furnish  the  executive 

*  See  as  a  development  of  this  observation  made  in  the  3d  ed.  (1892),  p.  673, 
Sorel,  "L  giuri  e  la  crise  del  diritto  penale"  S.  P.  (December,  1898). 


§327]  THE  JURY  497 

with  an  occasion  to  enter  upon  a  course  of  repression,  which,  if  we 
would  but  believe  the  constant,  eloquent,  and  always  disdained 
lessons  of  history,  produce  effects  very  different  from  those  intended. 
As  to  the  trials  of  common  crimes;  confessions,  when  corroborated 
by  external  evidence  (to  avoid  those  made  by  motives  of  self- 
interest  or  through  mental  disease)  should  remove  the  case  from 
the  jury.  The  prosecution  is  based  upon  the  idea  that  a  criminal 
trial  is  a  private  affair,  and  it  is  unjustified  when  one  of  the  parties 
does  not  desire  to  proceed,  hence,  the  English  distrust  a  confession, 
which  they  look  upon  as  a  refusal  to  contest.  To  avoid  certain 
disadvantages,  however,  pointed  out  by  Carrara,^  the  Scotch 
system  seems  preferable  to  the  English.  In  England,  the  judge 
first  asks  the  accused  whether  he  pleads  "Guilty"  or  "Not  Guilty," 
and  upon  the  former  plea  condemns  him  without  a  verdict.  In 
Scotland,  on  the  contrary,  the  district-attorney  must  present  the 
evidence  and  ask  for  a  verdict.  In  this  way,  the  scandal  of  a 
mass  of  abusive  and  absurd  verdicts,  entailed  by  the  Italian 
system,  are  avoided,  on  one  hand,  while,  on  the  other,  the  danger 
of  an  untrue  confession  and  a  condemnation  of  a  man  juridically 
irresponsible  are  likewise  avoided.^  Such  remedies  are  but 
palliations.  The  only  positive  conclusion  is:  let  us  preserve 
the  jury  on  condition  that  all  social  classes  be  equitably  repre- 
sented on  it  for  crimes  of  a  politico-social  order,  but  let  it  be 
abolished  for  common  crimes,  when  the  radical  reforms  which  we 
have  mentioned  for  the  insurance  of  the  independence  and  capac- 
ity of  the  judiciary,  have  been  effected. 

^  Carrara,  "Opuscoli  criminali,"  Vol.  I,  op.  4. 

*  For  the  desires  of  accused  persons  in  conformity  with  the  positive  school, 
see,  Ferri,  "Polemica"  (Bologna,  1886),  p.  162;  Garqfalo,  "Sulla  confessione  dei 
rei,"  A.  P.  (1886),  VII,  448;  and  Albano,  "Carcere  preventiva  e  liberty  provisoria," 
S.  P.  (30  September,  1891).  We  will  not  take  up  here  the  question  of  "technical 
juries,"  which  can  be  employed  in  only  a  very  restricted  sphere  for  crimes  of  a 
special  technical  character,  nor  the  system  proposed  by  Stengel  and  Hilgard  in 
Germany,  and  by  Pessina  in  Italy,  which  consists  in  making  the  judge  and  jury 
give  a  verdict.  It  seems  scientifically  correct  but  very  hard  to  work  practically. 
It  should  be  only  a  makeshift  until  the  jury  system  is  established.  For  "eche- 
vinage"  see  Cruppi,  "La  cour  d' assises"  (Paris,  1898),  Chap.  XI;  and  "Jury  et 
echevinage,"  in  the  "Revue  penitentiaire"  (December,  1899);  Leloir,  "Le  jury 
correctionel  dans  la  Suisse  romande,"  B.  U.  I.  D.  P.  (1888),  XIX,  p.  547;  Gneist, 
"Giuria  a  scabinato,"  in  "Filiangieri"  (1897),  fasc.  3,  p.  191;  Caldara,  "Lo  scabi- 
nato  nel  Canton  Ticino,"  S.  P.  (October,  1899). 


CHAPTER  V 

THE  "BANKRUPTCY  OF  THE  CLASSICAL  PENAL  SYSTEMS"  AND 
THE   POSITIVIST  SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE 

Fundamental  criteria  of  the  defensive  system.  Segregation  for  an  indeterminate 
time  with  periodic  revision  of  sentences.  Reparation  of  the  damages  as  a 
function  of  the  State.  Appropriation  of  specific  measures  to  the  categories 
of  criminals  reversing  the  classical  imity  of  punishment.  Common  char- 
acteristics of  the  different  establishments  of  segr^ations. 

§  328.    The  Bankruptcy  of  the  Classical  Penal  Systems. 

That  the  existing  penal  systems  —  inspired  on  one  hand  by 
the  pretension  of  measuring  the  moral  responsibility  of  delin- 
quents, and  on  the  other  by  the  hope  that  they  are  in  general 
corrigible,  this  being  consequently  reduced  more  and  more  to  an 
almost  exclusive  predominance  of  detention  under  the  cellular  sys- 
tem—  have  completely  failed  in  their  office  of  protecting  society 
from  crime  no  longer  requires  proof.^  One  of  the  most  famous 
classicists,  Holtzendorflf,  frankly  wrote  that  "the  penal  systems 
are  bankrupt."  "The  powerlessness  of  repressive  action  in 
Italy,"  ^  has  also  been  recognized.  The  conclusion  has  been 
reached  in  Germany'  that  existing  "penal  law  is  impotent 
against  criminality,"  and  there  is  talk  of  "the  check  of  existing 
systems  of  reprisal  and  intimidation."*  In  France,  "the  failure 
of   repression"    has   been    described.^     As   to   England,    where, 

1  A  compendium  of  the  present  systems  of  penalty,  complete  in  data  and 
citations,  has  been  prepared  by  AUgelt,  "Our  Penal  Machinery  and  its  Victims" 
(Chicago,  1886),  and  by  Sarrzewski,  "Die  heutige  Strafrechtspflege  mit  ihrer  Gefahr 
fiir  die  Allgemeinheit"  (Krefelt,  1890).  And  among  those  who  write  from  per- 
sonal experience,  Kropotkin,  "In  Russian  and  French  Prisons"  (London,  1887); 
E.  Gautier,  "Le  monde  des  prisons,"  III,  417  et  seq.;  Romussi,  "  Osservazioni  sui 
reclusori"  (Milan,  1899);  Vdera,  "Dal  cellulare  a  Finalborgo"  (Milan,  1899): 
and  among  the  most  recent  penitentiarists,  Tcdlack,  "  Penological  and  Preventative 
Principles"  (London,  1889),  Chap.  II. 

*  Aguglia,  "L'impotenza  dell'  azione  repressiva  in  Italia  e  sue  cause"  (Frascati, 
1884). 

*  Liszt,  "Kriminalpolitische  Aufgabe,"  Z.  G.  S.,  IX,  482. 

*  Seuffert,  "Rapport  k  I'lmion  intemationale  du  droit  penal,"  cited  by  Riviire, 
"Du  r6le  de  I'individualisation  dans  I'execution  des  peines,"  in  the  "Revue  p6ni- 
tentiaire"  (1894),  p.  1044. 

'  Joly,  "Le  Krach  de  la  repression,"  in  the  "Correspondant"  (25  February, 

498 


§328]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE       499 

however,  the  betterment  of  social  conditions  and  measures  of  in- 
direct prevention  have  led  to  a  diminution  of  natural  and  atavic 
criminality,  GriflBths,  Inspector-General  of  Prisons,  concluded  an 
address:  "In  our  opinion,  all  the  systems  of  imprisonment, 
although  studied  with  care  and  conceived  with  ingenuity  in  a 
humanitarian  spirit,  have  no  influence  of  an  appreciable  kind  on 
criminality.  England  has  tried  all.  She  has  hung  by  hundreds, 
deported  by  thousands.  She  has  employed  cellular  prisons, 
prisons  with  separate  quarters,  prisons  in  common,  and  all  the 
kinds  of  repression,  which  have  been  invented.  Well,  at  the  end 
of  the  nineteenth  century,  can  we  indicate  in  favor  of  such  or  such 
a  system  results  which  are  truly  typical  and  evidentiary  from 
the  point  of  view  of  the  diminution  of  criminaUty?"  ^ 

In  the  United  States  Chief  Justice  White  concluded  his  study  on 
the" Increase  of  Crime"  in  the  following  words:  "All  this  shows 
the  deplorable  fallacy  of  our  penitentiary  system  as  well  for  intimi- 
dation as  correction,"  ^  and  the  same  can  be  said  more  or  less  of 
every  country.  So  the  necessity  of  remedying  the  evil  has  con- 
stantly grown  in  the  minds  of  men.  Some  would  eflFect  it  by 
legislative  propositions,  by  partial  reform,  more  or  less  efficacious, 
but  all  by  a  reaction  against  penitentiary  classicism,  whether  they 
follow  a  scientific  propaganda  or  not.  The  faults  of  organization, 
in  the  principles  of  the  classical  criminal  theory,  and  in  the  practi- 
cal applications  of  the  classical  penitentiary  theory,  may  be  re- 
sumed as  follows:  imaginary  measurement  of  moral  and  penal 
responsibility  in  definite  doses  —  absolute  ignorance  and  disregard 
of  the  physio-psychological  character  of  the  criminal  —  lack  of 
connection  and  forgetfulness  of  the  relation  between  the  law  and 
the  sentence  on  one  hand,  and  the  sentence  and  its  execution  on 
the  other  —  disastrous  effects,  such  as  corruption  and  criminal 
associations  with  their  centers  in  the  prisons  themselves  (such  as 
the  Camorra  and  Maffia),  milUons  of  people  condemned  largely 
to  short,  stupid,  and  ridiculous  terms  of  imprisonment  —  and 
lastly,  a  continual  increase  of  recidivity. 

1896).  Joly  himself,  in  "Les  associations  de  I'etat  dans  la  lutte  centre  le  crime," 
in  "Revue  politique  et  parlementaire"  (September,  1895),  invoked  the  aid  of 
private  associations  to  repress  crime,  without  perceiving  that  the  causes  of  the 
evil  were  elsewhere. 

1  Griffiths,  "La  lutte  contre  le  crime,"  in  the  "Revue  p^nitentiaire"  (1893), 
p.  623.  See  also.  White  Mario,  "La  crisi  carceria  in  Inghilterra,"  in  the  "Scuola 
positiva"  (May,  1897). 

*  In  the  "Transactions  of  the  New  York  Medical  Association,"  and  "Revue 
penifentiaire"  (1896),  p.  815. 


500  PRACTICAL  REFORMS  [§  328 

Thus,  "the  Courts  of  Europe,"  writes  Prius,^  "with  their 
entirely  impersonal  modern  justice,  drop  condemnations  on  the 
unfortunate  as  a  sprinkler  scatters  water  on  the  earth."  It 
is  impossible  to  question  the  necessity  of  substituting  a 
system  of  social  defense  better  adapted  to  the  conditions  deter- 
minative of  crime,  and  consequently  more  efficacious  in  the 
protection  of  civil  society,  and  at  the  same  time  less 
disastrous  for  the  individuals  who  come  in  contact  with  it, 
in  place  of  the  present  penal  organization.  The  positive  school 
over  and  above  the  efficacious,  although  partial  remedies  pro- 
posed by  Lombroso,'^  and  the  important  practical  propositions, 
made  by  me  in  the  second  Italian  edition  of  this  work,  has  pre- 
sented in  Garofalo's  "Criminalogia" '  a  rational  system  of 
penalties  which  it  is  well  to  make  a  synopsis  of  here. 

I.  Homicides  (moral  in-  (  Homicide  committed  for  ^  Imprisonment  in  asylum 
sensibility  and  dis-  <  money  or  some  other  ?  for  criminal  insane  or 
tinctive  cruelty).  '     egoistic  pleasure.  )      death  penalty. 

n.  Violent  Men  or  Those  Controlled  by  Impulse  (lack  of  feeling  of  pity, 

prejudice  as  to  honor,  duty,  or  vengeance). 
Adults Homicide  provoked  by  sud-     Local  exile.     Removal  from 

den   severe   conflict.     Ho-         locality  of  victim. 

micide  in  self-defense. 

Adults Homicide  for  honor  or      Relegation  to  an  island  col- 

vengeance  (isolated  or  ony,  distant  village,  in  lib- 

endemic),  erty  but  imder  surveillance 

(for  a  definite  time  with  a 
period  of  observation  of 
from  5  to  10  years). 

Adults Assault,  rape,  robbery,  ab-      Reparation  in  damages  and 

duction.  fine.     Rigorous  for  solvent 

agents,  replaceable  by  con- 
fiscation of  part  of  salary 
or  compulsory  labor  — 
with  imprisonment  in  case 
of  refusal. 

^  Prius,  "La  loi  sur  la  liberation  conditionelle  et  les  condamnations  condi- 
tionelles,"  in  the  "Revue  de  Belgique"  (15  August,  1888).  For  the  action  of  the 
coiurts  of  inferior  jurisdiction  see  Cornell,  in  "Scribner's  Magazine"  (February, 
1897),  and  "Review  of  Reviews"  (1  April,  1897)  p.  81.  See  also,  Robert  Smith, 
"The  Social  Aspect  of  New  York  PoUce  Courts,"  in  the  "American  Journal  of 
Sociology"  (September,  1899). 

^  Lombroso,  "  L'incremento  del  delitto  e  i  mazzi  per  arrestarlo,"  and  "L'uomo 
delinquente"  Vol.  Ill,  5th  edition. 

*  U  ed.  1891,  pp.  457  et  seq. 


§328]      SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE      501 


Minors Assaults.    Sexual  crime. 


III.   Delinquents  Lacking  Sense  op  Honesty. 
Adults,  habitual ....  Robbery,  swindling,  incendi- 
arism, forgery,  extortion. 


Adults  occasional . 


Adults . 


.Robbery,  swindling,  incendi- 
arism, forgery,  extortion. 


.Peculation,  extortion,  graft, 
abuse  of  office. 


Adults. 


Adults. 


.Incendiarism,  devasta- 
tion, damages  caused  by 
vengeance  (without  at- 
tempts against  the  person). 


.  Bankruptcy.      Criminal    in- 
solvency. 


Adults. 


.  Counterfeiting,  forgery  of  ne- 
gotiable paper,  perjury, 
usurpation  of  titles,  false 
evidence  in  aid  of  culpa- 
ble. 


Adults Bigamy,  substitution  of  chil- 
dren, kidnapping. 

Minors Robbery,  swindling. 


Adults  and  Minors.  .Rebellion,  revolts,  resistance 
to  authority. 


Asylum  for  the  criminal  in- 
sane (for  culprits  with  a 
congenital  tendency). 
Penal  colony,  and  in  cases 
of  recidivity,  deportation. 


Asylum  for  the  criminal  in- 
sane (if  the  culprits  are 
insane  or  epileptic).  De- 
portation. 

Labor,  for  an  indeterminate 
period  —  until  aptitude  for 
regular  work  is  acquired,  or 
injunction  against  the  pur- 
suit of  profession  until  com- 
plete reparation  in  damages. 

Loss  of  office.  Injunction  of 
public  officer.  Fine.  Rep- 
aration in  damages. 

Reparation  in  damages;  in 
default,  prison.  Asylum 
for  criminal  insane  (for  the 
insane).  Deportation  (for 
recidivists). 

Reparation  in  damages.  Ex- 
clusion from  business  and 
public  office. 

Imprisonment  for  an  indeter- 
minate period,  and  fine  (in 
addition,  deprivation  of  of- 
fice and  reparation  in  dam- 
ages). 

Relegation  for  an  indeter- 
minate period. 

Farming  colony  (for  an  inde- 
terminate period). 

Imprisonment  for  an  indeter- 
minate period. 


Liszt/   agreeing   with   the   positive  school    in  upholding   the 
necessity  of  radical  reform  in  the  methods  of  repression,  proposed 

^  Liszt,  "  Kriminalpolitische  Aufgabe,"  Z.  G.  S.  (1890),  X,  51  et  seq.  and  for 
a  less  radical  system  of  penal  reform  see  Prius,  "Science  penale  et  droit  positif " 
(Brussels,  1899),  Bk.  VIII.     See  also,   Penta,  "II  trattamento  del  deUnquente" 


502  PRACTICAL  REFORMS  [§  329 

an  intermediate  system.  While  failing  to  take  account  of  the 
diflferent  categories  of  delinquents,  and  making  but  one  distinction, 
that  of  habitual  and  occasional  delinquents,  he  gave  a  system 
which  must  be  complimented,  especially  in  view  of  that  proposed 
by  Garofalo,  which  in  itself  has  some  faults. 

§  329.    Fundamental  Criteria  of  the  System  of  Social  Defense. 

Before  speaking  of  the  more  or  less  complete  particular  proposi- 
tions, it  is  necessary  to  estabUsh  certain  general  criteria,  which, 
based  on  scientific  knowledge  of  the  individual,  physical,  and 
social  features  of  criminahty,  can  serve  as  the  basis  of  the  positive 
system  of  social  defense  against  crime.  They  can  be  reduced  to 
three:  a.  Segregation  for  an  indeterminate  period.  6.  Repara- 
tion in  damages,  c.  The  choice  of  defensive  means  for  different 
classes  of  delinquents. 

§  830.    A.  Segregation  for  an  Indeterminate  Period. 

The  penal  problem  must  not  consist  in  fixing  a  certain  quantum 
of  penality,  hypothetically  proportioned  to  the  fault  of  the  de- 
linquent for  every  crime  committed.  It  must  be  a  decision 
whether,  given  the  objective  conditions  of  the  act  (right  violated 
and  harm  done)  and  the  subjective  condition  of  the  agent  (de- 
terminative motive  and  anthropological  category),  it  is  necessary 
to  separate  him  from  his  social  environment  permanently  or  for  a 
longer  or  shorter  time,  depending  upon  whether  he  is  readaptable 
to  social  environment,  or  whether  a  rigorous  reparation  of  the 
damage  caused  is  sufficient.  At  the  Anthropological  Criminal 
Congress  at  Geneva,  Griffiths,  the  Inspector-General  of  Prisons 
in  England,  adopting  the  ideas  of  the  positive  school,  stated  the 
penal  problem  in  these  words,  "It  is  necessary  to  divide  delin- 
quents into  two  main  categories;  those  who  should  never  go  into 
a  prison,  and  those  who  should  never  come  out."  Imprison- 
ment is  useless  for  occasional  delinquents.     A  fine  or  conditional 

(Naples,  1896),  and  the  criticism  by  Lomhroso  in  the  "Archivio  psicologico." 
More  recently  Liszt,  through  his  theory  of  determinant  motives,  divided  punish- 
ment into  three  kinds;  those  of  intimidation  (reprehension,  fine,  imprisonment) 
for  occasional  delinquents;  those  of  ameUoration  (forced  labor)  for  corrigibles, 
and  those  of  protection  (execution,  isolationy  for  incorrigibles.  "Die  psycholo- 
gischen  Grundlagen  der  Kriminalpolitik,"  Z.  G.  S.  (1896),  XVIII,  314;  and  Skhart, 
"Strafgesetz  auf  soziologischer  Grundlage,"  id.  (1896),  XVII,  374;  and  Florian, 
A.  P.  (1898),  XVIII,  314.  Saleilles  borrowed  this  classification  from  him.  See 
"Individualisation  de  la  peine,"  p.  251  (English  translation,  Boston,  1911). 


§330]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE        503 

sentence  is  sufficient.  For  habitual  delinquents  prison  is  useless 
unless  their  segregation  is  for  an  indeterminate  period,  that  is  to 
say,  "until  proof  of  real  amelioration."^ 

There  is,  therefore,  on  this  point,  a  radical  opposition  arising 
from  the  existing  systems  of  penality,  diverse  doubtless  in  the 
mechanism  of  their  execution  (which  are,  however,  completely 
foreign  to  the  sentence  of  the  judge,  and  often  even  to  the  dis- 
position of  the  statutes),  but  all  based  on  the  principle  of  the 
fixed  quantity  of  penalty  to  be  given  by  hundreds  and  thou- 
sands of  doses,  with  relation  to  the  crime  rather  than  to  the 
delinquent.  Those  systems  are  opposed  to  the  positive  penal 
system,  based,  on  the  contrary,  principally  on  the  segregation  of 
the  delinquent  for  an  indefinite  period  as  the  logical  consequence 
of  the  theory  that  the  punishment  must  not  be  retribution  for 
a  fault  through  a  proportioned  chastisement,  but  rather  a  defense 
corresponding  to  the  power  of  the  delinquent  to  do  harm  and 
to  his  chances  of  social  readaptation.^  This  principle  of  indeter- 
minate sentence  is  not  new,  but  it  is  only  owing  to  the  new 
scientific  principles  that  it  has  become  a  part  of  an  organized 
vital  system.  The  proof  of  this  lies  in  the  fact  that  under  the 
classical  criminal  and  penitentiary  theories  it  has  always  been 
atrophied  and  forgotten.  Clearly,  the  idea  of  a  justice  which 
punishes  such  a  quantity  of  fault  by  such  a  quantity  of  punish- 
ment counted  in  days  and  hours,  is  opposed,  and  very  naturally 
so,  to  this  indeterminate  sentence.  The  latter,  however,  has 
for  a  long  time  been  applied  to  the  criminal  insane  in  England, 
a  country  very  scrupulous  in  regard  to  personal  Hberty.  But 
in  this  case,  as  in  all  those  where  "a  priori"  oppositions  are 
met,  the  following  result  takes  place.  The  jurist  meets  every 
new  proposition  deduced  from  facts  by  some  inductive  general 
proposition,  and  believes  that  his  general  inductive  proposition 
is  sufficient  of  itself  to  discountenance  the  positive  proposition. 
But  this  is  going  too  fast  if  men  have  determined  the  inductions. 

They  are  not  revelations;  they  did  not  descend  from  Sinai,  and, 
therefore  it  is  hard  to  see  why  they  "per  se"  have  the  power  to 

1  A.  C.  A.  C.  (Geneve,  1897).  p.  343. 

*  We  can  find  an  absolutely  fjilse  work  for  the  arithmetical  gradation  of  pen- 
alties in  the  logismographic  attempt  of  Medem,  "Das  Problem  der  Strafzmnes- 
sung,"  in  the  "  Gerichtssaal "  (1888),  XL,  p.  3.  A  complete  review,  accompanied 
by  just  criticisms  from  a  positivistic  point  of  view  was  made  by  Olivieri,  in  the 
"Archivio  giuridico"  (1890),  XLIV,  fasc.  6.  On  this  subject,  the  works  of  Ben- 
tham  on  moral  arithmetic  and  Giorja  on  injury  and  damages  are  well  known. 


504  PRACTICAL  REFORMS  [§  330 

overcome  heterodox  ideas.  Man  can  alter  a  man-made  rule,  and 
he  is  justified  in  so  doing  if  his  modification  is  based  on  the  experi- 
ence of  every  day.  Dogmatic  and  monosyllabic  opposition  must 
therefore  be  disregarded.  New  ideas  must  be  discussed  to  see 
if  they  are  true  or  false;  but  there  is  no  touchstone  by  which  the 
quality  of  ideas  may  be  determined.  The  fundamental  idea 
of  law  is  a  limit  imposed  by  the  necessity  of  life,  and  imprison- 
ment for  an  indeterminate  period  in  nowdse  contradicts  it.  In 
fact,  every  day,  the  indeterminate  sentence  is  appUed  to  the 
insane;  it  has  been  enthusiastically  championed  for  recidivists 
and  incorrigibles,  on  the  principle  of  compensation.  If  the 
classical  criminologists  on  one  hand  find  an  increased  penalty  just 
and  necessary  for  him  who  twice  commits  a  crime,  it  is  logical  that 
this  increase  be  proportioned  to  the  number  of  recidivistic  acts, 
although  each  of  these  acts  shows  the  constantly  decreasing 
eflSciency  of  the  punishment;  and  thus  the  conclusion  of  unlimited 
detention  is  reached,  although  this  results  in  life  imprisonment 
and  the  return  to  the  law  of  the  Middle  Ages.  This  is  the  thought 
of  certain  classical  criminologists,  who  illogically  and  impracti- 
cally  refuse  to  accept  this  gradual  increase  because  they  refuse  to 
accept  at  the  beginning  any  special  augmentation  for  a  second 
criminal  act.^ 

On  the  other  hand,  if  the  greater  number  of  jurists  now 
believe  in  the  conditional  sentence  and  the  release  of  the 
criminal  whose  conduct  seems  to  prove  him  reformed  and  no 
longer  dangerous,  the  natural  and  logical  consequence  is  that  the 
unreformed  delinquent,  and  more  particularly  he  who  is  incor- 
rigible, must  undergo  a  prolonged  sentence.^  If  this  favor  is 
granted  to  the  individual  who  is  no  longer  a  source  of  danger  to 
society,  why  should  not  an  analagous  protection  be  given  to  society 
with  regard  to  the  individual  who  continues  to  be  a  menace  and 
a  danger?  Ortolan '  and  Roeder  *  uphold  this,  citing  in  favor 
of  their  position  (in  relation,  it  is  true,  to  recidivists  alone),  Henke, 
Stelzer,  Mohl,  Reichmann,  F.  Grooz,  von  Struve,  von  Lichten- 
berg.  Getting,  Krause,  Ahrens,  Schliephake,  von  Mehring,  Lucas, 

*  Mathaeus,  47,  Dig.  1,  m,  8;  Carmignani,  "Teorica  delle  leggi,"  III,  Cap. 
XI,  2;    Ti^sot,  "Le  droit  penal,"  pp.  443.  145. 

*  DavesiSs  de  Pontes,  "Les  reformes  sociales  en  Angleterre,"  R.  D.  M.  (Sep- 
tember, 1858),  134. 

»  Ortolan,  "Elements  du  droit  penal,"  4th  ed.,  1,  1192,  1201.  II,  1442,  etc. 

*  Boeder,  "Les  doctrines  fondamentales,  etc.,"  trans.,  Giner  (Madrid,  1877), 
p.  248. 


§330]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE        505 

Bonneville,  Saint- Vincent,  Conforti,  Van  der  Does,  among  the 
jurists;  Ducpetiaux,  Ferrus,  Thomson,  Mooser,  Fuesslin,  Diez, 
Valentin,  and  D'Alinze  among  those  who  have  taken  up  the 
question  of  imprisonment.  After  the  first  period,  the  criterion  of 
indeterminate  detention  or  segregation,  as  a  self-sustaining  and 
fundamental  principle  of  penalty,  was  first  upheld  by  Boileau  de 
Castenau  and  Despine.^  It  was  later  developed  by  many  publi- 
cists in  Germany  .2  These  authorities  have  insisted  on  the  evil 
and  harm  done  by  the  systems  of  penality  developed  under  the 
influence  of  the  criminal  schools  of  the  past.  And  even  Mittel- 
stadt,  guided  as  he  was  by  no  preUminary  study  of  the  natural 
laws  of  criminality,  reached  empirical  exaggerations,  such  as  the 
reestablishment  of  corporal  punishment  by  bastinade.  Certainly 
corporal  punishment  is  advisable  under  certain  conditions,  particu- 
larly for  men  whose  fiber  is  as  tough  as  that  of  born-criminals, 
and  this  is  why  we  see  a  tendency  to  use  it  on  many  sides. 

It  has  been  proposed  to  use  electricity  as  a  pimishment,  which 
because  of  its  mystery  strikes  the  patient  with  terror,  and  which 
is  in  nowise  repulsive.'     The  English  Commission  of  Inquiry  on 

1  Boileau  de  Castelnau,  "Les  maladies  du  sens  moral,"  A.  M.  P.  (1860), 
p.  537;   Despine,  "Psychologie  naturelle,"  I,  645  and  711,  390. 

*  Mittelstadt,  "Gegen  die  Freiheitsstrafen"  (Leipsig,  1879),  and  "FUr  und 
wider  die  Freiheitsstrafen"  (1882),  II,  445;  Kraepelin,  "Die  Abschaffung  des  Straf- 
masses"  (Stuttgart,  1880);  Vilbert,  "Das  Postulat  der  AbschaflFung  des  Straf- 
masses  und  die  dagegen  erhobenen  Einwendungen,"  Z.  G.  S.  (1882),  II,  473,  A.  P., 
Ill,  p.  483;  Kirchenheim,  "Mittelstadt  und  Kraepelin,"  id.  (1886),  I,  p.  403; 
Ferri,  "II  diritto  di  punire  come  funzione  sociale,"  id..  Ill,  and  "Nuovi  orizzonti 
del  diritto  penale"  1st  ed.,  pp.  45,  75,  and  2d  ed.,  p.  539;  Garofalo,  "Criterio 
positive  della  penality"  (Naples,  1880),  and  "Criminology"  (Boston,  1914); 
Van  Hamel,  "Rapporto  al  congresso  penitenziario  di  Roma;  suUa  latitudine  da 
iasciarsi  al  giudice  nella  determinazione  della  pena,"  R.  C.  (1884),  p.  415,  and 
"Actes  du  congres  penitentiaire  de  Rome"  (1887),  I.  459;  Medem,  "Das  Problem 
der  Strafzumessimg";  Smolden,  "Die  Freiheitsstrafen  und  die  Besserungstheorie," 
in  the"Preussische  JahrbUcher"  (1889),  B,  48;  Liszt,"  KriminalpolitischeAufgabe"; 
Rylands,  "Crime,  Its  Causes  and  Remedy"  (London,  1889),  p.  190;  Sommer, 
"Zur  AbschaflFung  des  Strafmasses,"  in  the  " Centralblatt  fUr  Psychiatrie"  (April, 
1890);  Asabrott,  "Ersatz  Kurzzeitiger  Freiheitsstrafen"  (Hamburg,  1890);  Von 
Zuker,  "Einige  criminalistiche  Zeit-  und  Streitfragen  der  Gegenwart,"  in  the  "Ge- 
richtssaal"  (1890),  XXIV,  pp.  1  et  seq.;  Havelock  Ellis,  "The  Criminal"  (London, 
1890),  pp.  258  et  seq.;  Fourtoul,  "La  philosophie  penale"  (Brussels,  1891), 
p.  146;  Max  Sternau,  "Die  Abschaffung  des  Strafmasses,"  Z.  G.  S.  (1893),  p.  17. 

3  Roncati,  "Compendio  d'igiene"  (Naples,  1876),  Cap.  XXXVII;  Bain, 
"Mind  and  Body";  "The  Science  of  Education."  Balfour  Stevcart  and  Tait, 
"The  Invisible  Universe,"  cited  by  Caro,  R.  D.  M.  (1st  June,  1883),  p.  547,  speaks 
of  the  use  of  electricity  in  punishment.  See  Dallemagne,  "La  pena  corporale  e  le 
sue  basi  fisiologiche,"  S.  P.  (31  October,  1894);  Morrison,  "La  scuola  positiva 
nelle  riforme  penal  inglese,"  id.  (31  December,  1894);  Frenkel,  "Les  corrections 
oorporelles  en  Russie"  (May,  1899). 


506  PRACTICAL  REFORMS  [§330 

the  eflFects  of  the  law  of  penal  servitude,  says  in  its  reports, 
"Corporal  discipline,  formerly  the  cat-o '-nine-tails,  and  now  the 
whip,  in  English  prisons,  is  inflicted  only  for  serious  faults.  Ex- 
perience has  shown  that  in  many  cases  they  produce  excellent 
effect."  ^  And  yet  it  must  be  acknowledged  that  corporal  punish- 
ment as  a  principal  punishment,  even  in  the  least  barbarous 
forms,  is  repugnant  now  to  our  sentiments  of  humanity,  and 
also,  too  easily  abused.^  It  can  only  be  admitted  as  discipUnary 
for  prisoners  (as  discipline  it  is  impossible  to  do  away  with  it 
completely,  so  that  it  had  better  be  regulated  by  law,  as  was 
recognized  in  1878  at  the  Congress  of  Stockholm),  above  all  in 
the  form  of  electric  shock  and  cold  douches,  which  have,  apart 
from  the  pain  they  cause,  therapeutic  effects,  which  are  a  basis 
for  their  being  required  in  ordinary  hospitals  and  insane  asylums. 
I  therefore  agree  with  Krichenheim  in  sustaining  the  propositions 
of  Kraepelin  for  the  indeterminate  sentence  already  sought  in 
Italy  by  Garofalo  and  myself,'  and  beheve  that  they  respond  to 
the  scientific  spirit  of  modern  criminal  law.  In  an  excellent 
article  in  the  "Quarterly  Review"  of  1871,  it  is  said,  "When 
some  serious  robbery  takes  place  the  public  makes  a  large  outcry 
and  issues  complaints  in  all  the  papers,  and  demands  what  the 
police  is  doing.  The  latter  could  justly  reply  that  it  nearly 
always  arrests  the  culpables,  but  that  justice  hastens  to  return 
them  to  society  more  given  over  to  robbery  than  before  and 
better  instructed  in  the  means  of  escaping  the  police."*  But 
above  all  in  these  latter  years,  while  a  unanimous  plebiscite  finds 
fault  with  punishment  of  short  sentences  and  propositions  of 
conditional  condemnation  or  suspension  of  sentence  which  are 

1  See  R.  C.  (1880),  p.  494.  Notion,  in  "Corporal  Punishment,"  "Prisons' 
Service  Review"  (February,  1897),  confirmed  this  recently. 

*  For  this,  see  Gram,  "La  p>ena  corporale,"  in  the  "Rivista  penitenziaria  del 
nord"  (1895),  fasc.  I,  and  "Revista  penitenziaria"  (1896),  p.  642. 

'  Garofalo,  "Criterio  positiva  della  penalita,"  p.  72,  and  A.  P.  Ill,  1,  "Ci6  che 
dovrebbe  essere  uji  giudizio  penale,"  insists  that  the  abolition  of  every  fixed  means 
decided  in  advance  be  reserved,  as  I  proposed  before  Kraepelin,  to  the  single 
categories  of  habitual  criminals,  who  should  be  isolated  for  an  indeterminate 
period  in  si>ecial  establishments.  It  is  only  in  his  "Criminology,"  that  he  adopted 
indeterminate  sentence  as  a  general  principle.  In  "D  diritto  di  punire  come 
funzione  sociale,"  and  in  the  first  edition  of  this  book  (1881,  p.  45),  I  WTote  that 
"the  period  of  segregation  must  not  be  determined"  a  priori  "by  the  judge,  but, 
on  the  contrary,  it  is  in  the  province  of  the  director  of  the  special  establishment, 
which  I  have  for  the  delinquent,  to  decide  upon  a  lifelong  or  temporary  detention, 
depending  upon  a  psycho-anthropological  study  of  the  prisoner.  This  idea  is 
perhaps  acceptable,  but  undoubtedly  worthy  of  consideration." 

*  "The  London  Police,"  in  the  "Quarterly  Review"  (1871). 


§330]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE        507 

the  consequence  of  this  outcry,  the  principle  of  indeterminate 
sentence  has  been  most  amply  developed  and  upheld  in  spite  of 
feeble  and  unconvincing  objections  by  Tallack,  Wahlberg,  La- 
mezan,  Von  Jageman,  and  Prius.^  For  it  is  easy  to  reply,  in  the 
first  place,  to  the  fundamental  objection  that  indeterminate 
imprisonment  is  made  in  the  name  of  personal  Uberty  and  in- 
dividual rights,  that  it  is  already  used  for  the  insane  who  are 
imprisoned  only  for  an  indefinite  period;  and  secondly,  that  in 
practice,  thanks  to  the  periodic  revision  of  sentences,  there  will 
always  be  means  of  guaranteeing  the  personal  rights  of  the  prison- 
ers who  have  become  readapted  to  social  life. 

Apart  from  theory,  we  see  that  in  America  the  principle 
of  indeterminate  sentence  has  been  apphed  with  good  re- 
sults in  the  reformatory  at  Elmira  under  the  direction  of 
Brockway,  who  has  added  to  it  a  special  course  of  physical 
and  moral  hygiene  based  upon  a  knowledge  of  the  culpable, 
and  consequently  very  efficacious.  The  system  of  indetermin- 
ate sentence,  which  all  the  Congresses  of  the  National 
Prison  Association  of  the  United  States  —  at  Atlanta  in  1887, 
Buffalo  in  1888,  Nashville  in  1889  —  have  proposed  as  the  general 
principle  of  punishment,  has  already  been  adopted  in  imitation 
of  the  institution,  at  Elmira,  in  Massachusetts,  Pennsylvania, 
Minnesota,  Ohio,  and  Illinois,  and  has  been  applied  in  the  prisons 
of  New  York.^  In  conclusion,  every  culpable  —  if  the  act  that 
he  has  committed  and  his  personal  disposition  show  that  repara- 
tion for  damage  caused  is  an  insufficient  social  sanction,  —  should 
be  sentenced  by  the  judge  of  condemnation  to  segregation  for 
an  indefinite  period  either  in  an  asylum  for  the  criminal  insane, 
in  a  house  of  correction,  or  in  a  farming  colony  for  occasional 
delinquents,  either  adult  or  minor.  Secondly,  the  execution  of 
this  sentence  —  which  by  hypothesis  would  never  be  irrevocable 

1  Van  Hamel  held  very  positivistic  views  on  this  subject  in  his  "Rapport  au 
congres  penitentiaire  international  de  Rome"  (1885),  A.  C.  A.  C.  (1887),  I,  100, 
but  in  a  recent  lecture  entitled  "Les  sentences  indetermin^,"  before  the  "Society 
des  prisons  de  Paris"  (published  in  the  "Revue  penitentiaire,"  May,  1889),  he 
endorsed  Liszt's  idea  of  a  legal  minimum  and  maximum,  which,  in  my  opinion, 
are  contrary  to  the  nature  of  an  indeterminate  sentence;  it  would  be  as  well  to 
establish  a  minimum  and  maximum  for  the  insane.  Van  Hamel  was  adversely 
criticised  at  this  and  the  following  session  (See  "Revue  penitentiaire,"  June, 
1889,  and  July,  1889,  p.  1087). 

"  R.  C.  (1887),  p.  103  (1889),  p.  213;  and  "Proceedings  of  the  Criminal 
Congress  of  the  National  Prison  Association  of  the  United  States"  (held  at  Nash- 
viUe),  (Chicago,  1890),  pp.  iv,  18,  76,  100,  107,  273. 


508  PRACTICAL  REFORMS  [§  330 

—  should  be  directed  carefully  by  a  further  process  no  longer 
unattached  as  to-day  from  the  work  of  the  judge,  but  continuing 
it  as  a  function  of  practical  defense  entrusted  to  special  organs. 
The  Commissions  of  Penal  Execution  ("Strafvollzugsamter")  ^ 
composed  of  anthropologico-criminal  experts,  the  judge,  the 
attorneys  for  prosecution  and  defense,  and  the  administrative 
oflScers,  would  continue  to  deal  with  the  condemned.  He  would 
no  longer  be  abandoned  and  forgotten  from  the  moment  that  he 
has  heard  his  sentence  pronounced,  imless  pardoned,  or  else,  upon 
coming  out  from  prison,  reappearing  before  the  court,  as  happens 
every  day.  This  would  be  a  truly  humane  and  efficacious  work  of 
protection,  to  the  good  of  society,  which  would  no  longer  fear 
the  liberation  of  dangerous  criminals,  on  a  definite  day  and  for 
the  individual,  who  would  not  have  to  undergo  until  the  end  a 
condemnation  of  useless  and  exaggerated  severity.  The  institu- 
tion of  probation  is  closely  connected  with  that  of  the  indetermi- 
nate sentence.  This  marks  a  progress  which,  accomplished 
already  in  England  and  Ireland,  has  appeared  in  much  of  the 
penal  legislation  of  Europe  and  America.  If  this  institution, 
however,  is  imited  with  a  fixed  measure  of  punishment  and  if  it 
is  not  related  with  the  recognition  of  different  categories  of  de- 
linquents, it  will  not  produce  good  effects,  because  the  convict 
will  be  liberated  mechanically  at  fixed  periods,  in  accordance 
with  the  statute,  without  any  regard  to  the  prerequisite  of  good 
conduct.  This  is  a  general  and  very  illusory  guarantee,  for,  as 
the  English  Commission  of  Inquiry  said  in  1863,  "It  is  evident 
that  the  good  conduct  of  prisoners  has  a  negative  (lack  of  serious 
faults)  rather  than  a  positive  value." 

It  can  be  easily  understood,  on  the  contrary,  that  conditional 
liberation  organized  under  the  opposite  system  of  indeter- 
minate sentence,  would  be  granted  only  after  a  physio-psycho- 
logical examination  of  the  condemned,  which  would  be  personal 
and  not  a  departmental  examination  of  documents  such  as 
the  examinations  under  the  present  penal  laws.  It  would  not 
be  refused,  as  to-day,  because  of  grave  faults  actually  set  forth 
in  the  statutes,  but  because  of  the  personal  character  of  the 
prisoner.  It  would  not  be  accorded  to  incorrigibles  nor  to 
bom-criminals  or  the  criminal  insane  guilty  of  grave  atavic 
faults,  and  consequently  not  readaptable  to  social  life.     Further- 

^  This  is  the  name  proposed  by  Liszt,  who,  however,  did  not  include  expert 
anthropological  criminalists  in  the  committee. 


§331]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE        509 

more,  conditional  liberation  in  the  present  system  entails  a  sur- 
veillance by  the  police  over  the  prisoner,  who  has  been 
granted  his  Uberty.  The  harm  that  this  surveillance  causes  him 
and  the  inevitable  obstacles  which  it  opposes  to  his  rehabili- 
tation cannot  be  denied.  It  is  clear,  on  the  contrary,  that  under 
the  system  of  indeterminate  sentence  the  liberation  of  the  con- 
demned would  take  place  with  the  certainty  of  his  readaptation 
to  the  social  environment,  and  would  exclude  the  vexatious  or 
useless  measure  of  special  police  surveillance.  There  is  not 
much  to  be  expected  of  the  present  societies  for  adult  ex-convicts, 
for  in  spite  of  their  many  humanitarian  exhortations  and  senti- 
mental declarations,  they  have  until  the  present  (inevitably) 
been  generally  ineJEficacious.  The  ordinary  defect  of  not  classify- 
ing delinquents  and  consequently  those  liberated  conditionally, 
has  been  and  still  is  the  inevitable  reason  of  the  uselessness  of  the 
efforts  of  prison  societies.  For  if  occasional  delinquents,  actually 
capable  of  reform,  are  not  separated  from  the  others,  all  citizens 
will  prefer  inevitably,  and  very  justly,  employees  who  have 
remained  honest  in  spite  of  their  poverty,  particularly  in  preference 
to  habitual  and  incorrigible  delinquents.  As  a  matter  of  fact, 
societies  make  no  difference  between  these  classes.  Prison 
societies  will  not  become  vital  unless  they  take  part  in  the  criminal 
clinic  of  university  students,  judges,  and  lawyers. 

§  331.  B.  Reparation  in  Damages. 
The  second  fundamental  principle  of  a  positivistic  system  of 
social  defense  against  crime  is  reparation  in  damages.  The 
positive  school  has  already  called  attention  to  this  by  radical 
theoretical  and  practical  propositions.  Reparation  of  the  harm 
suffered  by  the  victims  of  crime  can  be  considered  from  three 
points  of  view: 

I.  As  an  obligation  of  the  delinquent  to  the  injured  party; 

II.  As  a  punishment  in  place  of  imprisonment  for  petty 
crimes  committed  by  occasional  delinquents; 

III.  As  a  function  of  the  State  in  the  direct  interest  of  the 
injured  party  and  in  the  indirect  but  no  less  real  interest  of  social 
defense. 

The  latter  two  forms  of  reparation  for  harm  done  are  the 
special  work  of  the  positive  school;  the  second  under  the  initia- 
tive of  Garofalo  and  Puglia,  the  third  based  on  my  proposal, 
which,   requiring  a  more  radical  innovation  of  principle,   met 


510  PRACTICAL  REFORMS  [§331 

great  opposition  at  the  hands  of  classicists  and  eclectics.  In  the 
"Diritto  di  punire  come  funzione  sociale"  ^  I  wrote,  "None  can 
object  that  civil  reparation  is  not  a  penal  responsibility,  because, 
in  the  first  place,  there  is  no  diflFerence  between  the  payment  of  a 
fine  and  reparation,  and,  above  all,  because  an  error  has  been 
made  until  the  present  time  in  the  separation  of  civil  from  penal 
means,  for  they  both  concur  in  the  defense  of  society  by  prevent- 
ing certain  dangerous  or  harmful  acts."  At  a  later  point, 
enumerating  the  means  of  social  defense  (preventative,  repara- 
tive, repressive,  and  eliminative)  I  added,  "But  our  innovation 
is  not  only  theoretic,  because  in  the  greater  nmnber  of  cases, 
this  obligation  in  damages  is  estabUshed;  it  must  be  practical, 
in  the  sense  that,  by  the  non-separation  of  civil  from  criminal 
means,  it  will  be  of  more  general  application  and  will  demand 
procedural  doctrines  to  establish  special  and  more  suitable  forms 
and  organs  for  this  category  of  measures,  by  obligating,  for  ex- 
ample, the  criminal  judges  by  the  hquidation  of  damages  to 
suppress  the  length  and  delays  of  a  new  civil  process,  and,  by 
obligating  the  representatives  of  the  district-attorney's  ofiice  to 
demand,  when  the  victim  of  the  crime,  either  through  ignorance 
or  fear,  fails  to  do  so,  a  judgment  in  damages.  The  result  will  be 
that  the  fear  of  the  loss  of  some  hundreds  of  dollars  will  render  the 
rich  more  circumspect  (in  regard  to  involuntary  crimes).  If  the 
defendant  is  poor,  we  must  suggest  the  substitution  of  labor  for 
the  victim,  whether  an  individual  or  society,  in  place  of  damages." 
Soon  after  Garofalo  wrote,  "According  to  our  school,  in  many 
crimes,  especially  in  petty  crimes,  the  punishment  of  a  judicial 
imprisonment  or  arrest  can  well  be  replaced  by  an  effective  repara- 
tion of  damages  as  a  satisfaction  to  be  given  to  the  victim.  Repa- 
ration in  damages  can  be  an  actual  equivalent  of  punishment  if, 
in  place  of  being  as  it  is  to-day  a  legal  consequence,  a  judgment 
to  be  collected  according  to  the  rules  of  civil  procedure,  it  becomes 
an  obligation  from  which  the  defendant  cannot  escape."  * 

It  was  Garofalo,  again,who  insisted  more  than  the  other  positivists 
on  these  ideas,  developing  them  by  a  practical  procedure  of  re- 
forms.'    The  idea  which  we  advance  has  made  much  progress. 

1  Preliminary  lesson  in  the  University  of  Bologna,  published  in  "Archiv.  di 
psich."  (1882),  in,  fasc.  1. 

*  Garofalo,  "Cio  che  dovrebbe  essere  iin  giudizio  penale." 

'  Garofalo,  "Criminology";  "Discussione  al  congresso  penitenziario  di  Roma" 
(23  November,  1885),  "La  riparazione  alle  vittime  del  dilitto"  (Turin,  1886); 
"La  riforma  della  procedura  penale"  (with  Carelli)  (Turin,  1889);   "Rapport  sup 


§  331]    SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE         511 

It  has  been  fully  discussed  in  books  and  in  the  meetings  of  societies, 
beginning  with  the  first  Congress  of  the  Chnical  Anthropology  in 
Rome,  in  1885,  when  it  appeared  on  motion  of  Fioretti  in  a  resolu- 
tion by  Ferri-Fioretti-Venezian,  as  follows:  "The  Congress, 
convinced  of  the  importance  of  insuring  civil  reparation  in 
damages,  not  only  in  the  immediate  interest  of  the  party,  but  also 
in  the  immediate  interest  of  preventive  and  repressive  social 
defense  against  crime,  expresses  the  hope  that  positivist  legisla- 
tion will,  at  the  earliest  possible  moment,  employ  the  most  suitable 
means  or  process  against  the  authors  of  harm,  their  accompUces, 
or  abettors,  by  considering  the  effectuation  of  reparation  as  an 
official  social  function  of  the  district-attorney  during  the  trial, 
the  judges  in  the  sentence,  and  the  prison  administration  in  regard 
to  the  eventual  compensation  by  prison  labor  and  petitions  for 
conditional  liberation."  ^ 

The  classical  principle  that  reparation  of  damages  occasioned 
by  crime  is  a  purely  civil  and  private  obhgation  of  the  delin- 
quent (similar  to  that  based  on  breach  of  contract)  and  that 
it  must  be,  therefore,  entirely  distinct  from  the  penal  sentence, 
has  resulted  in  the  complete  disappearance  of  reparation  in 
the  daily  judicial  practice;  for  the  victims  obliged  to  bring  civil 
suit  with  advance  of  costs,  and  to  undergo  a  civil  trial, 
abandon  the  hope  of  an  easy  and  sure  indemnity  for  the 
moral  and  material  harm  that  they  have  undergone,  and  content 
themselves  more  and  more  with  some  poor  settlement  as  a  purely 
voluntary  concession  on  the  part  of  the  delinquent;  hence,  a 
recrudescence  of  private  vengeance  and  a  deplorable  loss  of  con- 
fidence in  the  reparatory  work  of  social  justice.  In  the  realm  of 
theory,  both  for  law  and  procedure,  thanks  to  the  customary 
complication  of  scientific  tariffs  and  the  illogical  and  absolute 

la  question  'Mesures  pour  restreindre  le  r6le  de  la  prison  dans  la  repression  des 
infractions  legeres,'"  B.  U.  I.  D.  P.  (May,  1889);  "Relazione  al  III^  congresso 
giuridico"  (Florence,  1891). 

1  Fioretti,  "Des  meilleurs  moyens  pour  obtenir  le  dedommagement  du  crime," 
A.  C.  A.  C.  (Rome,  1886),  pp.  349,  363  et  seq.  The  same  question  was  advanced 
in  the  first  and  third  meetings  of  the  International  Union  of  Criminal  Law  (Brussels, 
August,  1889),  in  the  International  Penitentiary  Congress  of  Paris  (1895),  and  of 
Brussels  (1900),  before  the  "Societe  des  prisons  de  Paris."  Report  by  Brunot, 
"Moyens  pratiques  d'assurer  k  la  victime  du  delit  I'indemnit^,"  in  the  "Revue 
penitentiaire"  (February,  March,  April,  May,  1898),  before  the  Congress  of 
German  Jurists  (1893),  on  the  remarkable  report  of  Jelisch  completed  by  the 
data  of  the  comparative  history  of  legislation;  and  to  the  Third  International 
Juridical  Congress  at  Florence  (September,  1891),  which  approved  the  proposition 
made  by  Garofalo,  recommending  the  institution  of  a  fund. 


512  PRACTICAL  REFORMS  [§  331 

separation  between  civil  and  penal  law,  the  penologists  have 
taken  no  account  of  reparation  in  damages,  leaving  it  entirely  to 
the  theoretical  authorities  on  civil  law.  The  latter,  in  their 
turn,  have  neglected  it  in  the  case  of  crimes  for  the  practical  pro- 
cedural guarantees,  looking  upon  it  as  an  accessory  of  Uttle  impor- 
tance, which  should  be  considered  by  the  students  of  penal  law. 
There  have  been,  it  is  true,  certain  isolated  demands  which  have 
met  with  no  result;  and  only  the  absolutely  new  method  intro- 
duced by  the  positive  school  can  give  this  institution  a  new  lease 
of  life.^  But  it  is  not  necessary  to  deal  here  with  the  reparation 
in  damages  in  relation  to  the  practical  procedural  methods  which 
will  render  it  more  efficacious.  At  this  point,  the  question  of 
principle  alone  wUl  be  dealt  with.^  With  the  essentially  public 
nature  of  the  social  function  of  reparation,  it  is  inunoral  to  confuse 
the  obUgation  of  the  delinquent  to  repair  the  harm  he  has  done 
by  his  crime  with  that  derived  from  breach  of  contract.  There 
is  no  difficulty  in  the  recognition  of  the  principle  which  we  fol- 
lowed, except  mental  habits  born  at  the  end  of  the  Middle  Ages, 
and  a  regular  establishment,  for  economic  reasons,  of  the  district- 
attorney's  office,  habits,  however,  to  which  the  Greek  and  Roman 
traditions  with  their  distinction  of  pubUc  and  private  crime,  can 
be  opposed.    Just  as  crime  determines  a  social  reaction  under 

^  Apart  from  the  suggestion  of  Bentham  in  his  "Principles  of  the  Penal  Code," 
Chap.  IX,  and  the  remarkable  arithmetical  propositions  of  Gioia  in  "Ingiurie, 
danni  e  soddisfacimenti,"  Spencer,  particularly  in  his  "Political  Essays"  on  prison 
morals,  took  up  reparation  to  regulate  penal  sanction.  Even  in  1847,  Bonneville 
de  Marsagny,  with  admirable  common  sense,  stating  that  the  private  damage 
caused  by  crime  was  almost  never  paid,  made  these  remarkable  propositions: 
"  The  Court  must  fix  the  amoimt  of  the  damage.  —  It  must  give  the  victim  a 
lien  upon  the  goods  of  the  condemned.  —  Indemnity  must  be  required  by  the 
State  to  defray  the  expenses  of  justice.  —  Pardon  must  never  be  granted  unless 
the  damage  is  repaired  (the  family  of  the  condemned  being  responsible).  —  A  part 
of  the  earnings  of  the  condemned  must  be  set  aside  for  the  victim.  —  Prescription 
can  only  be  permitted  (as  luider  the  Austrian  Code)  when  the  harm  has  been 
remedied  and  the  criminal  has  gained  nothing  by  his  crime."  Bonneville,  "Repara- 
tion civile  en  matiere  criminelle,"  in  the  "Revue  penitentiaire"  (1847),  IV,  444. 

*  With  the  same  thought,  Franchi  held  that  labor  in  penal  farming  colonies 
must  not  be  paid  to  the  condemned,  but  the  product,  after  the  expenses  of  his 
keep  have  been  paid,  should  go  into  a  fimd  to  repay  the  victims  of  crime.  He 
showed  that  this  is  a  means  for  the  civil  education  of  the  collective  conscience, 
both  because  it  thus  learns  that  crime  is  an  act  which  harms  society  as  a  whole, 
and  because  it  no  longer  considers  the  isolated  author  of  an  offense,  but  the  entire 
mass  of  prisoners,  which  tends  by  its  work  to  undo  its  wrongs.  Thus  will  arise 
a  feeling  of  great  pity  for  criminals  considered  as  affected  by  a  psychic  disease. 
Franchi,  "  II  progetto  Giolitti  per  il  lavoro  dei  condamnati  aU'  aperto  e  il  diritto 
penale"  (January,  1903). 


§  331]    SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE         513 

the  form  of  indefinite  isolation  of  the  delinquent  when  the  act  is 
serious  and  the  delinquent  dangerous,  so  it  must  result  in  a  de- 
fensive social  reaction  in  the  form  of  reparation  in  damages,  to 
which  may  be  added  isolation,  if  necessary,  or  which  may  be 
suflBcient  of  itself,  when  it  constitutes  a  sufficient  defense,  that  is, 
when  neither  the  act  is  serious  nor  the  agent  dangerous. 

When  the  obUgation  to  repair  the  harm  done  without  civil  suit 
can  exercise  more  efficacious  repressive  force  than  the  board  and 
lodging  gratuitously  allotted  to  the  defendant  for  some  days  or 
weeks  in  a  State  prison,  it  falls  naturally  into  two  divisions:  that 
of  an  indemnity  or  fine  paid  the  State,  and  that  of  indemnity 
paid  to  the  victim.  We  can  go  further,  and  add  that  the  State 
should  take  into  account  the  rights  of  the  victim,  paying  him  an 
immediate  satisfaction,  especially  when  blood  has  been  shed, 
looking  to  the  offender  to  reimburse  it  for  its  expense,  as  well 
as  for  the  expense  of  trial.^  Penal  evolution,  as  we  have  said, 
is  a  decisive  proof  of  the  necessity  of  such  reforms.  At  first, 
reaction  against  crime  was  an  exclusively  private  affair;  then 
its  severity  was  mitigated,  and  it  took  the  form  of  a  pecuniary 
settlement,  one  part  of  which  went  to  the  State,  which  soon  took 
the  balance  of  the  compensation,  leaving  the  injured  party  the 
poor  consolation  of  demanding  and  obtaining  indemnity  before 
a  different  court.  Nothing,  therefore,  is  more  in  accord  with 
this  evolution  of  punishment  and  the  reform  which  we  demand 
for  the  reparation  of  damages,  which  we  look  upon  as  a  public- 
private  function,  the  equally  juridical  and  social  consequence  of 
the  commission  of  crime.  The  establishment  of  a  fund  to  meet 
the  indemnity  formed  by  the  interest  of  the  fines  and  indemnities 
perhaps,  refused  by  the  victims,  will  be  the  final  and  complete 
recognition  of  this  principle.  The  classical  principles  dominant 
to-day  constitute,  on  the  contrary,  a  pleasing  outline  rather  than 
a  serious  organization  of  penal  justice.  When  citizens  pay  taxes 
to  the  State,  it  is  with  the  hope  of  receiving  public  services  from 
it  in  exchange,  the  first  and  most  essential  of  which  is  pubUc  safety, 
and,  in  fact,  the  State  expends  for  this  supreme  social  function 
hundreds  of  thousands  of  dollars  every  year,  and  yet  upon  the 
commission  of  every  crime  a  grotesque  scene  takes  place. 

The  State,  negligent  in  not  having  taken  more  precautions  against 
the  crime  and  more  care  for  protection  of  its  citizens,  arrests 

*  Lioy,  A.  C.  A.  C.  (Rome,  1866),  p.  377,  in  the  "Nuova  scuola  penale"  (Turin, 
1866),  p.  43;  F^i,  "Degenerescence  et  criminality,"  Chap.  XIII. 


514  PRACTICAL  REFORMS  [§331 

the  culpable  (when  it  does  arrest  him,  for  sixty  per  cent,  of  the 
known  crimes  go  unpunished)  and  in  the  forty  per  cent,  of  the 
known  crimes  in  which  the  arrested  individual  is  condemned  as 
the  author  of  the  misdeed,  the  State,  which  must  defend  the 
superior  interests  of  absolute  justice  on  behalf  of  the  public, 
does  not  concern  itself  with  the  injured  party,  but  abandons 
him  to  his  prosaic  private  interest  and  a  distinct  civil  court. 
On  the  other  hand,  it  makes  the  delinquent  pay  a  fine  to  the 
pubUc  treasury,  even  when  the  crime  is,  for  example,  a  robbery 
or  harm  done  to  private  property.  Thus  the  State  cannot  pre- 
vent crime,  cannot  repress  it,  except  in  a  small  number  of  cases, 
and  consequently  fails  in  its  duty  for  the  accomplishment  of 
which  it  receives  taxes  from  its  citizens,  and  then,  after  aU  that, 
it  accepts  a  reward;  and  over  and  above  this,  it  condemns 
every  ten  years  some  3,230,000  individuals,^  the  greater  part 
of  whom  it  imprisons,  putting  the  expense  of  their  maintenance 
on  the  back  of  the  honest  citizens  whom  it  has  neither  protected 
from  nor  indemnified  for  the  harm  done  by  the  crime;  and  all 
this  in  the  name  of  the  eternal  principles  of  absolute  and  retribu- 
tive justice.  It  is  evident  that  this  manner  of  administering 
justice  must  undergo  a  radical  change.  The  State  must  indemnify 
the  individuals  for  the  harm  caused  them  by  crimes  which  it  has 
not  been  able  to  foresee  or  prevent  (this  principle  is  recognized 
partially  in  certain  public  disasters  by  remission  of  taxes  or 
pecuniary  aid).  It  then  will  be  free  to  place  the  damages  upon 
the  delinquent  by  the  means  already  given,  and  to  demand  from 
him  the  expenses  which  his  crime  has  necessitated  in  order  to  pay 
the  salaries  of  the  judges  and  watchers,  and  to  meet  the  indemnity 
of  those  who  suffered  by  it.  In  this  way  alone  will  the  State, 
obKged  first  of  all  to  repair  at  its  own  expense  the  damage  caused, 
be  aroused  by  its  natural  fiscal  instinct  to  keep  its  eyes  open  and 
to  more  rigorously  obtain  reimbursement  from  the  condemned 
and  in  this  way  alone  will  the  principle  of  social  solidarity  be 
recognized,  not  only  against,  but  also  for,  the  individual,  who, 
according  to  positivist  belief,  must  always  answer  for  crimes  of 
which  he  is  the  author  and  be  indemnified  for  those  of  which  he 
is  the  victim.  Thus  it  is  clear  that  in  the  positivist  system  of 
social  defense  against  crime,  which  aims  at  a  more  efficacious 
protection  of  society  and  the  individual,  reparation  in  damages 
takes  on  the  character  of  a  fundamental  principle.  Just  as  the 
^  The  number  of  condemned  in  Italy  from  1880  to  1889. 


§  332]    SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE         515 

segregation  of  the  criminal  for  an  indeterminate  period  has  been 
established  as  a  fundamental  regulation,  regardless  of  practical 
measures  of  detention  and  imprisonment,  so  reparation  of  the 
harm  done  by  the  crime  is  reestablished  as  a  fundamental  regula- 
tion, regardless  of  what  procedural  measures  guarantee  and 
eflFect  it.  And  in  this  fact  itself  are  found  the  radically  new 
methodical  criteria  which  criminal  sociology,  relying  on  the 
data  of  anthropology  and  statistics,  substitutes  for  the  traditional 
criteria  of  the  classical  criminal  and  penitentiary  schools. 

§  332.    C.  The  Choice  of  Defensive  Means  for  Different  Categories 
of  Delinquents. 

The  two  fundamental  principles  of  the  positive  system  of 
social  defense  against  crime  would,  however,  be  incomplete  unless 
they  were  complemented  and  rendered  practically  applicable, 
not  so  much  by  more  or  less  opportune  disconnected  propositions 
as  by  another  general  rule  which  serves  as  a  stepping-stone  to 
the  practical  organization  of  social  defense.  This  rule  is  the 
choice  of  defensive  measures  with  regard  to  the  anthropological 
categories  of  delinquents.  On  this  point,  as  on  all  others,  the 
classical  belief  is  in  direct  opposition  to  ours;  for  its  ideal  is 
unity  of  punishment,  and  on  this  point  harmony  reigns  not  only 
among  the  theoretical  jurists,  who,  if  we  are  to  believe  Beltrani 
Scalia,^  take  too  exclusive  a  part  in  the  discussion  of  the  penal 
systems  in  the  proposals  for  an  Italian  penal  code,  but  also  among 
the  practical  authorities  on  prisons,  to  whom,  on  the  contrary, 
if  we  are  to  believe  Liszt,^  a  too  exclusive  part  in  the  discussion 
of  the  same  problem  has  been  given  in  Germany.  However,  the 
report  on  the  last  proposal  of  an  Italian  penal  code^  frankly 
reached  this  conclusion  —  that  "elsewhere  the  tendency  which 
prevails  in  the  legislation  of  the  most  civilized  nations  is  to  reduce 
imprisonments  to  the  smallest  possible  number,  while  approach- 
ing constantly  the  ideal  desired  by  those  who  are  the  most  expert 
in  prison  matters,  unity  of  punishment." 

It  can  be  easily  understood  that  such  would  be  the  idea  of 
both  criminologists  and  penitentiarists  from  the  moment  that 
they  both  considered  the  delinquent  as  a  mean  and  abstract 
type,  or  an  algebraic  term  to  which  the  first  applied  an  article 
of  the  penal  code,  and  the  second  assigned  it  a  more  or  less 

.  1  Beltrani  Scalia,  "La  riforma  penitenziaria  in  Italia"  (Rome,  1879),  p.  48. 
»  Liszt,  "Kriminalpolitische  Aufgabe,"  487,  488.  »  1887,  I,  78. 


516  PRACTICAL  REFORMS  [§332 

monastic  cell.  This  explains,  also,  why  in  propositions  of  reform, 
such  as  conditional  reparation  and  conditional  sentence,  the  dif- 
ferences of  type  among  delinquents  are  often  forgotten  in  think- 
ing of  the  nature  of  the  misdeed  and  the  penalty  rather  than 
the  physio-psychological  qualities  of  the  malefactor.  Further- 
more, it  can  easily  be  understood  why  the  positivists  look  upon 
the  simplification  of  pimishment,  even  if  it  is  imprisonment,  as 
an  absurdity,  because  it  is  in  direct  opposition  to  the  undeniable 
positive  fact  of  the  diflference  which  exists  between  the  categories 
of  delinquents:  ^  that  it  must  be  a  relation  of  homogeneity  be- 
tween the  remedy  and  the  evil  is  a  natural  law.  Du  Mesnil  said, 
"A  prisoner  is  a  patient  more  or  less  curable  of  a  moral  kind 
(and  I  add  of  a  physical  kind)  and  consequently,  the  great 
principles  of  the  art  of  medicine  must  be  applied  to  him,  and 
diversity  of  remedies  must  oppose  diversity  of  ills."  ^  And  yet, 
on  this  point,  besides  an  excess  of  uniformity,  the  opposite 
excess,  under  the  name  of  the  individuahzation  of  punishment, 
must  be  avoided.  This  is  popular  with  the  American  peniten- 
tiarists  who  enthusiastically  demanded  it  after  the  publication 
of  Saleille's  book.'  Of  course,  every  criminal  chnic  must  aim 
to  apply  to  every  individual  convict  a  particular  course  after 
having  made  a  physio-psychological  study  of  him  and  the  condi- 
tions which  have  led  him  to  crime.  But  this  is  still  impossible, 
above  all,  in  countries  where  the  number  of  prisoners  is  very  great, 
or  where  the  officials  in  charge  are  not  students  of  biology  and 
criminal  psychology.  It  is  impossible  for  a  manager  who  has  at 
one  time  all  the  administrative  anxiety  and  financial  responsibiUty 
to  individualize  the  discipline  of  four  or  five  hundred  prisoners. 

The  cellular  system,  which  reduces  the  characteristic  mani- 
festations of  personal  autonomy  of  the  prisoners  to  a  minimum, 
bringing  them  all  under  a  uniform  rule  of  routine,  makes  it 
impossible  to  observe  and  study  the  special  character  of  every 

'  Our  principle  is  already  applied.  See,  Vincens,  "Notices  individuelles  sur 
les  jeunes  detenus  (pour  les  classer  d'une  fagon  rationelle  dans  les  divers  etablisse- 
ments  penitentiaires),"  in  the  "Revue  penitentiaire"  (1895),  p.  33.  In  France, 
"an  amendment  division"  has  been  established  for  the  less  hardened  adult  de- 
linquents. Laguesse,  "'Les  quartiers  d'amendement'  des  maisons  centrales," 
id.  (1895),  p.  id74,  and  Cuche,  id.  (1895),  p.  327. 

*  Du  Mesnil,  "Regime  et  systeme  pyenitentiaire,"  A.  H.  P.  (1871). 

•  Saleilles,  "Individualization  of  Punishment "  (Boston,  1911).  Before  this  pub- 
lication, however,  Cuche  had  WTitten  "L'avenir  de  I'intimidation,"  in  the  "Revue 
penitentiaire"  (1894),  pp.  786  et  seq.;  and  Riviire,  "Du  r6le  de  I'individualisatioa 
dans  I'execution  des  peines,"  p.  1044. 


§332]     SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE       517 

prisoner  in  order  to  give  him  a  special  discipline.  No  warden  or 
assistant  would  be  capable  of  fulfilling  so  delicate  and  diJQBcult  a 
function.  It  is  an  admitted  fact  that  certain  penitentiaries  flourish 
when  they  have  the  good  fortune  to  possess  a  warden  who  naturally 
is  a  psychologist,  such  as  De  Metz,  Crofton,  Roukawichnikoff, 
and  the  Abbe  Spagliardi,  and  fail  when  such  directors  die  or 
leave.  This  is  the  most  eloquent  proof  that  the  whole  secret  of 
penitentiary  success  lies  less  in  the  magic  virtue  of  a  cellular 
prison  than  in  the  prudence  and  psychological  penetration  of 
the  warden.^  Just  as  a  bad  law,  appUed  by  conscientious  and 
intelligent  judges,  is  better  than  a  monumental  code  apphed  by 
poor  judges,  so  a  well  worked-out  penitentiary  system  confided 
to  incapable  persons  effects  less  good  results  than  a  less  ideal 
system  under  good  management.  Since  this  question  of  the 
choice  of  personnel  is  always  difficult,  above  all  for  financial 
reasons  (for  save  in  very  rare  exceptions,  good  personnel  cannot 
be  obtained  without  good  pay),  in  order  to  avoid  inevitable 
faults  it  is  necessary  to  substitute  for  the  unreliable  theory  of 
individualization  the  criterion  of  classification,  which  gives  the 
merits  of  the  other  principle  a  more  easy  and  practical  realiza- 
tion.^ It  cannot  be  said  that  the  anthropological  criminologists 
do  not  agree  upon  a  classification,  and  that  consequently  an 
actual  basis  is  lacking  for  this  fundamental  criterion,  for  as  I 

^  Desjnne  in  "Psychologic  naturelle,"  III,  pp.  387  et  seq.,  develops  a  peni- 
tentiary regime  founded  on  the  data  furnished  by  psychology,  but  with  exaggera- 
tions and  illusions  which  cannot  be  accepted. 

'  These  ideas,  already  expressed  in  the  third  edition  of  his  work,  (1892), 
p.  708,  show  the  slight  foundation  of  the  criticism  of  the  positive  school  by  Tarde 
(in  the  preface  to  Saleilles,  "  L'individualisation  de  la  peine,"  p.  5),  where  it  is  said 
that  when  "the  positivists  (naturalistic  or  socialistic),  seek  the  causes  of  crime 
they  discover  only  impersonal  factors  such  as  climate,  season,  cranial  anomaUes(!), 
or  suggestions  of  environment;  they  natiu"alize  or  socialize  crime.  And  when 
there  arises  a  question  of  penal  application  of  their  theory,  it  is  astonishing  to 
see  how  they  push  the  individualization  of  punishment  to  the  limit,  as  if  the  in- 
dividual, in  place  of  being  nothing,  had  become  all."  The  truth  is  that  the  posi- 
tivists have  always  the  personal  (organic  and  social)  as  well  as  the  impersonal 
(telluric  and  social)  factors  of  crime;  and  in  place  of  ideal  extreme  individualiza- 
tion they  have  advanced  the  practical  criterion  of  classification,  that  is,  a  penal 
discipline  suited  to  each  bio-sociological  class  or  subdivision  of  delinquents.  This 
was  recognized  by  Grundtrmg,  "  Individualizzazione  e  i  mezz.  per  realizzarla,"  in 
the  R.  P.  N.  (1894),  fasc.  I,  and  "Revue  penitentiaire "  (1895),  p.  150;  Liszt,  with 
Seuffert,  at  the  meeting  of  the  International  Union  of  Penal  Law  in  Heidelberg, 
June,  1897,  upheld  this  idea  of  classification,  as  the  end  of  individualization, 
although  both  were,  he  said,  "  too  far  from  the  legal  concepts  of  judge  and  author- 
ities." See  also  Riviere,  "Du  r6le  de  l'individualisation."  The  principle  of  classi- 
fication has  been  proposed  by  the  Committee  for  prison  reform  in  England.    See 


518  PRACTICAL  REFORMS  [§333 

have  shown,  not  only  the  differences  on  the  subject  of  diverse 
classifications  are  not  only  unessential  and  merely  formal  and 
secondary,  but  in  the  second  place,  all  students  agree  more  and 
more  to  accept  the  classification  which  I  have  proposed. 

§  333.    Prisons  must  be  Hospitals  where  Delinquency  is  Treated. 

Let  us  now  consider  a  practical  positivist  system  of  social 
defense  on  the  basis  of  an  anthropological  classification  of  de- 
linquents, regarded  as  the  first  criterion,  with  the  crime  as  a 
secondary  consideration  (for  it  is  not  the  crime  in  the  delinquent, 
which  must  be  punished,  but  the  delinquent  because  of  his  crime). 
But,  before  taking  up  these  practical  propositions,  we  must 
outhne  the  rules  common  to  all  the  many  forms  of  defensive 
organization.  First  of  all,  the  common  and  fundamental  char- 
acter of  all  the  different  establishments,  where  delinquents  for 
whom  reparation  in  damages  is  not  a  sufficient  punishment  are 
isolated,  must  change  from  prisons,  or  places  of  torture  and 
slavery,  into  establishments  of  physical  and  moral  treatment, 
with  discipline  suited  to  the  diverse  forms  of  criminal  tendency, 
similar  to  hospitals,  special  clinics,  and  insane  asylums.^  From 
a  juridical  point  of  view,  they  will  have  but  one  end  —  the  segre- 
gation of  individuals  temperamentally  unfit  for  social  life.  From 
a  technical  point  of  view,  their  purpose  will  be  twofold;  first,  to 
utilize  to  the  best  advantage,  for  society  and  the  individual,  the 
labor  of  delinquents  not  readaptable  to  social  life,  by  reducing 
physical  constraint  to  the  minimum  necessary  to  prevent  criminal 
excess  and  giving  predominant  importance  to  regulating  their 
activity  to  hygienic  and  psychological  dynamics.  As  to  de- 
linquents readaptable  to  social  life,  their  hygienic  and  productive 
activity  must  be  developed  in  the  fashion  best  suited  to  develop 
and  fortify  their  intelligence  and  will,  in  conformity  with  the 
data  of  physio-psychological  and  psycho-pathological  pedagogy. 
Furthermore,  the  easiest  measure  for  their  legal  rehabilitation  will 
be  taken,  as  has  aheady  been  begun  in  some  civilized  countries.'^ 

Rinieri  de  Rocchi,  "La  classificazione  del  delinquenti  e  il  rapporto  sulle  carceri 
inglesi,"  in  the  "Scuola  positiva"  (September,  1895).  Dr.  Orange  introduced 
the  criterion  of  classification  in  the  asylum  for  the  criminal  insane  at  Broadmoor. 
See  Lombroso,  "L'uomo  delinquente,"  III,  556. 

^  See  to  this  purpose,  Vargha,  "Die  Abschaffung  der  Strafknechtschaft" 
(Gratz,  1896,  1897).  Long  prior  to  this  Wyroubqff,  in  "De  la  penaUte"  (concern- 
ing a  work  by  Girardin  in  the  "Philosophic  positive,"  1871),  "I  am  in  favor  of  the 
aboHtion  of  penal  servitude,  which  is  doomed  like  slavery  and  feudalism." 

•  For  example,  the  Danish  law  of  13  April,  1894,  allows  full  rehabilitation  in 


§335]      SYSTEM  OF  REPRESSIVE  SOCIAL  DEFENSE      519 

§  334.    Prisons  Must  Not  be  Places  of  Ease. 

In  the  second  place,  precautions  must  be  taken  to  avoid  mak- 
ing the  establishments  where  the  guilty  are  isolated,  instead  of 
places  of  privation,  places  of  ease  and  criminal  association,  as 
they  are  too  often  to-day.  Romagnosi  said  very  strongly  that 
punishment  loses  all  its  force  when  experience  shows  that  it  is 
less  severe  than  expectation  had  painted  it.  D'Ohvecrona, 
Lombroso,  and  Beltrani  Scalia,  among  others  insist  upon  this 
point.  A  generous  reaction  against  the  horrors  of  prisons  in  the 
past,  has  resulted  in  an  exaggeration  of  the  ease  of  ordinary 
prisoners  (atavic  criminahty),  although  it  has  increased  the 
severity  against  those  of  a  political  or  social  character  (evolutive 
criminality).  At  the  Penitentiary  Congress  at  Rome  in  1885, 
for  example,  a  motion  was  approved  to  amuse  prisoners,  even 
those  convicted  of  mvu-der  and  rape,  with  music  on  Simdays; 
and  Luigi  Lucchini  proposed  to  provide  those  confined  in  cells 
with  means  of  sexual  intercourse  at  the  expense  of  the  State, 
in  order  to  avoid  the  dangers  of  masturbation.^  But,  after  ex- 
amining further  the  social  conditions  and  differences  which 
must  be  made  between  the  honest  and  dishonest,  it  will  be 
seen  that  the  establishments  of  isolation,  which,  far  from  being 
places  of  torture,  and  while  furnishing  means  of  physical  and 
psychical  betterment,  must  always  be  undesirable  for  their  in- 
mates. For,  to-day,  during  the  rigorous  seasons  of  the  year, 
their  state  is  a  manifest  injustice,  dangerous  to  the  last  degree, 
because  they  are  objects  of  envy  to  the  honest  laborer,  badly 
clothed,  badly  nourished,  and  miserably  housed. 

§  335.    Universal  Necessity  of  Working  in  Prisons. 

In  the  third  place,  the  obligation  to  work  must  be  universal 
and  absolute.  Under  the  existing  system,  the  State  keeps  in 
idleness  those  whom  it  has  condemned  to  hard  labor,  with  the 
result,  as  Spencer  pointed  out,^  that  crime  is  to  the  advantage 
of  the  culprits,  who  obtain  board  and  lodging  free,  while  it  is  a 
double  loss  to  the  honest,  who  not  only  suffer  from  the  misdeed 
but  must  contribute  largely  to  the  support  of  the  evildoer.     It 

certain  cases.  So  the  Belgian  law  of  25  April,  1896,  and  the  French  of  21  Febraary, 
1891.  See  Passez,  "Reformes  a  introduire  dans  la  loi  sur  la  rehabilitation,"  in 
the  "Revue  penitentiaire"  (April,  1898). 

}  See  "Uno  spiritista  del  diritto  penale,"  p.  28,  and  Ferri,  "Studii  sulla  crimi- 
nalitik  ed  altri  saggi"  (Bocca,  Turin,  1901).  *  Spencer,  "Political  Essays." 


520  PRACTICAL  REFORMS  [§335 

is  impossible  to  see  how  crime  can  free  a  man  from  the  necessity 
of  working  for  his  daily  bread  —  a  necessity  to  which  he  was 
subject  before  his  misdeed  and  to  which  all  honest  men  are  sub- 
jected. We  can  point  out,  however  (without  speaking  of  the 
hygienic  eflficiency  of  labor  shown  by  daily  experience  with  the 
ordinary  insane),  that  this  is  the  only  means  of  solving  the  external 
question  of  the  competition  of  prison  and  free  labor.  For,  if  the 
prisoner  must  either  labor  or  remain  idle,  there  is  but  one  choice, 
that  he  should  work.  The  difficulty  is  first  avoided  by  making 
the  prisoners  work  in  the  industries  which  compete  least  directly 
with  free  labor;  second,  by  giving  them  full  compensation,  but 
deducting  their  board,  clothing,  and  lodging,  and  repaying  in 
full  or  in  part  their  victims  for  the  harm  done  them.^  The 
maxim  that  labor  is  the  price  of  life,  true  for  all  human  beings 
save  children  and  the  sick,  should  be  engraved  on  the  portal  of 
every  prison.^ 

*  The  International  Prison  Congress  in  Paris  (1895),  on  the  contrary,  resolved 
"  that  the  prisoner  has  no  right  to  salary,  but  that  it  is  to  the  interest  of  the  State 
to  give  him  something."  "Revue  penitentiaire"  (1895),  p.  1019.  This  is  the 
old  inefficient  system. 

'  I  have  treated  these  two  questions  in  "Lavoro  e  celle  dei  condamuati." 


CHAPTER  VI 

PRACTICAL  REFORMS  (Continued) 

Insane  criminals  and  asylums  for  the  criminal  insane.  Bom-criminals,  the  death 
penalty,  deportation,  indeterminate  segregation.  The  cell-system  is  one  of 
the  aberrations  of  the  XlXth  Century.  Labor  in  the  open  air  in  agricul- 
tural colonies.  Habitual  criminals.  Criminals  by  occasion  and  the  abuse 
of  short  term  detention.     Criminals  by  passion  and  their  relative  impimity. 

§  336.  Insane  Criminals  and  Asylums  for  the  Criminal  Insane. 

As  far  as  insane  or  semi-insane  individuals  are  concerned, 
after  the  isolated  propositions  advanced  during  the  last  half 
century  by  several  ahenists  (among  them  Georget  ^  and  Briere 
de  Boismonf^),  a  complete  literature  has  developed  in  favor 
of  asylums  for  the  criminal  insane,  while  but  few  voices  have 
spoken  for  the  objections  and  reservations,  which  have  almost 
entirely  ceased  among  the  alienists.  These  asylums,  first  begun 
in  England  in  1786  and  more  efficiently  organized  in  1816,  with 
the  mad-house  at  Bedlam  (because  of  three  attempts  at  political 
assassination  by  insane  men  in  rapid  succession),  are  still  active 
and  successful.  So  are  the  asylums  at  Dundrum,  in  Ireland, 
founded  in  1850;  Perth,  in  Scotland,  founded  during  the  same 
year,  Broadmoor,  in  England,  founded  in  1863,  and  those  in 
Pennsylvania,  New  York  (founded  in  1874),  and  in  Canada, 
founded  in  1877.  On  the  Continent,  there  is  no  asylum  for  the 
criminal  insane,  properly  so  called.  France,  after  trying  to 
congregate  the  criminal  insane  at  Bicetre,  estabUshed  in  1876 
a  special  department  for  them  in  the  penitentiary  at  Gaillon. 
Holland  has  devoted  the  asylum  at  Bozmalen  to  convicts  who  go 
insane. 

Germany  has  assigned  special  departments  for  this  purpose 
in  the  institutions  at  Bruchsaal,  Waldheim,  Halle,  and  Ham- 
burg.    Italy  created  a  special  section  for  the    criminal    insane 

*  Georget,  "Nouvelle  discussion  m6dico-16gale  sur  la  folie"  (1829),  p.  73,  cited 
by  Legrand  du  Saidle,  "La  folic  devant  les  tribunaux"  (Paris,  1864),  p.  65. 

*  Brierre  de  BoismorU,  "De  la  necessite  de  creer  im  etablissement  special  pour 
les  ali^nes  vagabonds  et  criminels,"  A.  H.  P.  (1846),  Vol.  XXXV,  p.  396;  "Les 
fous  criminels  k  I'Angleterre,"  id.  (1869),  p.  382. 

521 


5«2  PRACTICAL  REFORMS  [§337 

in  the  penal  institute  at  A  versa,  in  October,  1876,  and  a  more 
complete  asylum  in  Ambrogiana  at  Montelupo,  in  Tuscany,  and 
later  one  at  Reggio-Emilia,  but  these  were  devoted  to  convicts 
who  went  insane  only,  and  an  observatory  section  for  the  study 
of  those  under  arrest  suspected  of  insanity.  Since  then,  legisla- 
tures in  France  and  Italy  have  proposed  to  estabUsh  true  asylums 
for  the  criminal  insane  in  France  by  the  statute  of  November, 
1882,  in  Italy  by  that  of  March,  1881,  amended  m  April,  1884. 
The  "inquiry  into  legislation  relative  to  insane  delinquents,"^ 
undertaken  by  the  "Societe  generale  des  prisons,"  shows  that  in 
Italy  (until  1890),  in  France,  Germany,  Austro-Hungary,  Croatia, 
Belgium,  Portugal,  and  Sweden,  delinquents  released  for  insuflS- 
cient  proof  or  acquitted  because  of  insanity,  while  removed  from 
the  judicial  sphere  are  subjected  to  the  more  or  less  regular  and 
diUgent  care  of  the  administrative  authority  —  but  in  England, 
Holland,  Denmark,  Spain,  and  Italy  (since  1890)  the  judiciary 
are  authorized  and  often  bound  to  confine  such  individuals  in 
asylums. 

§  337.  Asylums  for  the  Criminal  Insane.    Objections.     Expense. 

And  now,  as  the  practical  organization  of  asylums  for  the 
criminal  insane  cannot  be  taken  up  here,  I  will  reply  only  to  a 
few  of  the  main  objections  which  have  been  advanced,  and  show 
what  individuals  should  be  so  confined.  Those  objections  which 
relate  to  the  enormous  expense  need  not  be  considered,  for  a 
misunderstood  economy  of  a  few  hundreds  of  dollars  should  not 
be  allowed  to  entail  grave  material  and  moral  harm.  And  like- 
wise the  hypothetical  bloodshed  arising  from  the  congregating  of 
the  insane  in  one  place  can  be  disregarded.  If  such  scenes  take 
place  among  the  insane  it  is  better  for  them  to  occur  within  the 
walls  of  asylums  rather  than  at  large  to  the  harm  of  useful  and 
honest  citizens.  Furthermore,  if  the  estabUshment  is  well- 
organized  and  distinction  made  between  the  different  classes 
according  to  character,  precedent,  disease,  and  so  on  (for,  of 
course,  the  separation  of  individuals  into  categories  is  essential 
in  all  estabUshments  of   this  kind)^  it  will  greatly  reduce  the 

1  In  the  B.  S.  G.  P.,  from  Dec.,  1878,  to  March,  1879,  and  "Revue  peniten- 
tiaire"  (May,  June,  1897).  See  also  Herbelot,  "Sur  la  legislation  des  alienes 
dangereux"  (March,  1883);  Ronssel,  "Rapport  au  Senat  pour  la  revision  de  la 
loi  sur  les  alienes,"  2  vols.  (Paris,  1884). 

*  This  rule  is  observed  at  the  asylum  for  the  criminal  insane  at  Ambrogiana, 
directed  with  scientific  and  practical  knowledge  by  Dr.  Codeluppi,  where  remark- 


§337]  PRACTICAL  REFORMS  523 

present  number  of  such  occurrences  both  within  and  without 
asylums,  where,  however,  they  attract  less  attention  because 
they  are  scattered  or  attributed  to  inmates  who  are  sane. 

Two  more  serious  objections  are  made  to  asylums  for  the  criminal 
insane,  and  they  are  repeated  by  some  of  our  opponents  with  an 
obstinacy  worthy  of  a  better  cause.  In  the  first  place,  an  attack 
is  made  against  the  weaker  side  of  the  dilemma,  and  it  is  said  that 
whoever  has  done  violence  is  either  insane  or  guilty.  If  he  is 
insane,  say  Fabret,  Mendel,  and  others,  then  it  makes  httle  matter 
that  he  has  to  do  with  justice.  There  is  no  crime  on  his  part 
because  he  is  "non  compos  mentis."  He  should  be  put  in  an 
insane  asylum,  and,  if  he  is  dangerous,  he  should  be  subjected  to 
special  discipline,  as  are  all  other  of  the  dangerous  insane  although 
not  charged  with  any  crime;  or,  on  the  other  hand,  the  author 
of  the  crime  is  guilty,  and  then  he  should  be  put  in  jail.  Our 
answer  to  this  is  simple.  In  the  first  place,  the  dilemma  is  not 
real,  because  it  does  not  include  the  intermediary  cases  in  which 
abstract  logic  itself  recognizes,  as  Carrara  said,^  the  necessity 
of  an  intermediate  segregation,  half-way  between  that  of  the 
asylum  for  the  criminal  insane  and  that  of  the  prison.  But 
above  all,  the  first  alternative,  which  deals  with  the  actual  in- 
sanity, is  not  enough  to  do  away  with  the  need  for  such  asylums, 
for,  while  it  seems  very  simple  to  say  that  if  the  agent  is  an  ordi- 
nary non-dehnquent  insane  patient,  he  must  go  to  an  asylum, 
yet  if  he  is  an  insane  dehnquent  special  measures  should  be  taken 
in  place  of  trusting  to  the  present  system,  which  allows  the  ad- 
ministrative authorities,  whom  one  cannot  accuse  of  having  too 
much  knowledge  or  too  much  heart,  to  take  care  of  the  insane 
sent  to  them  during  trial  or  after  judgment. 

The  inadequacy  of  this  system  is  shown  by  sad  and  frequent  ex- 
amples when  new  crimes  are  committed  by  individuals  who  have 
been  freed  for  the  first  delinquency  either  immediately  after  trial  or 
after  a  short  detention  in  an  asylum  because  of  their  infirmity.^  At 
most  it  can  be  said  that  it  is  not  necessary  to  have  special  estab- 
lishments, but  that  it  is  sufficient  to  set  aside  special  sections  in 

able  order  reigns.  Many  convicts  work  in  squadrons  out  of  doors  (within  walls, 
however),  and  each  squadron  is  guarded  by  an  armed  man. 

^  Carrara,  "I  periti  alieniste  nel  foro,"  in  "Opuscoli,"  Vol.  VII,  p.  141. 

*  In  "I'Omicidio"  (p.  712),  I  gathered  many  cases  of  insane  murderers,  who, 
hardly  out  of  the  asylum,  committed  new  murders.  See,  also.  Monad,  "Alien^s 
recueillis  apres  condamnation  dans  les  asiles  publics  de  1886  k  1890,"  in  A.  M.  P. 
(March,  1895). 


524  PRACTICAL  REFORMS  [§337 

ordinary  insane  asylums,  and  that  in  this  way  the  indignity  to 
the  families  of  the  non-delinquent  insane  is  avoided,  an  indignity 
which  so  many  people  now  consider  infamous.  And  yet,  against 
the  division  into  special  sections  there  are  practical  reasons  of 
order  and  discipline,  for  it  presents  disadvantages  which  experi- 
ence has  already  shown.  There  is,  also,  a  principle  involved  as 
well  as  practical  reasons,  for  while,  as  Fabret  says,  "The  supposed 
delinquent  must,  from  the  moment  when  he  is  recognized  as 
insane,  cease  to  be  considered  as  a  delinquent,  and  be  dealt  with 
purely  and  simply  according  to  criminal  law."  Two  considerations 
must  be  made  on  the  other  side  of  the  question.  First,  he  cannot 
be  "purely  and  simply"  considered  by  criminal  law,  because, 
while  he  is  insane,  he  is  distinguishable  from  other  insane  patients, 
in  that  he  has  committed  murder,  rape,  arson,  or  robbery,  and 
the  others  have  been  and  still  are  harmless,  and  criminal  psychol- 
ogy shows  that  the  criminal  insane's  idea  of  punishment  ^  is 
analogous  to  that  which  the  delinquent  and  not  the  ordinary 
insane  entertains.  Fmrthermore,  the  reasoning  which  we  attack 
belongs  to  an  order  of  ideas,  which  science  is  rapidly  eliminating, 
—  the  theory  that  insanity  is  a  misfortune,  while  crime  is  an 
evil  exercise  of  free  will.    This  is  not  true. 

Just  as  it  has  been  admitted  for  more  than  a  century,  con- 
trary to  the  behef  of  the  Middle  Ages,  that  insanity  does  not 
depend  upon  free  will,  so  to-day  we  must  recognize  that  crime 
has  nothing  to  do  with  moral  liberty.  Crime  and  insanity 
are  both  misfortunes.  They  both  should  be  treated  without 
resentment,  although  we  must  protect  ourselves  against  them. 
So  this  objection  that  the  supposed  delinquent,  when  insane, 
must  be  dealt  with  according  to  criminal  law,  cannot  be  up- 
held against  the  principles  of  the  positive  school.  He,  like 
the  true  delinquent,  must  be  dealt  with  according  to  defen- 
sive law.  This  same  reason  we  believe  overcomes  the  second, 
and  last,  serious  objection  according  to  which  an  insane  man 
cannot  be,  simply  because  he  has  committed  a  murder,  im- 
prisoned for  life,  "in  the  good  pleasure  of  His  Majesty"  as 
the  English  say,  who,  however,  are  very  proud  of  their  writ 
of  habeas  corpus  when  the  liberty  of  sane  citizens  is  in  dis- 
pute. From  the  moment  that  he  is  cured,  even  if  his  term 
of  imprisonment  in  case  of  condemnation  has  not  expired,  he 
must  be  freed.  Our  answer  to  this  is  negative.  Psychiatry 
1  Saccozzi.  R.  C.  (April,  1888). 


§337]  PRACTICAL  REFORMS  5^5 

upholds  us  by  proving  the  considerable  proportion  of  relapses  in 
all  kinds  of  insanity,  and  especially  in  certain  particularly  danger- 
ous forms.  Experience  upholds  us,  also,  by  showing  the  frequent 
new  crimes  committed  by  the  insane,  who,  however  (were  it  only 
for  financial  reasons),  cannot  be  justly  kept  in  an  ordinary  insane 
asylum  after  they  appear  completely  cured;  and  we  answer 
juridically  by  the  principle  of  social  defense  proportionate  to 
the  dangers  which  may  be  feared  at  the  hands  of  the  delinquent 
whether  insane  or  not,  that  while  the  danger  continues  the  pro- 
tection must  also  continue.  This  applies  to  all  grave  crimes, 
such  as  murder  and  arson. 

As  to  the  semi-insane  and  the  petty  delinquents,  to  those 
who  have  committed  theft  or  been  guilty  of  slander,  these 
can  be  given  their  freedom  after  having  been  treated  and 
after  having  shown  the  signs  of  amehoration,  except  in  cases 
where  their  mental  diseases  can  transform  them  into  danger- 
ous delinquents  (such  as  epilepsy  and  the  deUrium  of  persecu- 
tion).^ Mancini  made  a  declaration  which  conforms  to  the 
principles  of  the  classical  school  when  he  said,  "I  cannot  under- 
stand how  the  very  court  which  the  law  forces  to  give  a  judgment 
of  acquittal  when  the  jury  has  declared  that  at  the  time  of  the 
commission  of  the  crime  the  accused  was  not  in  possession  of  his 
reason  and  was  consequently  irresponsible,  can,  at  the  same  time, 
order  his  forced  confinement  for  any  time  whatsoever  in  an  insane 
asylum  —  is  it  because  he  has  committed  a  crime?  That  is 
patently  untrue,  he  has  committed  no  crime  (in  the  meantime 
I  would  say  here  that  the  victim  is  dead,  and  that  others  may 
die  from  his  acts)  because  he  did  not  know  what  he  was  doing, 
and  had  no  consciousness  of  his  acts,  and  for  these  very  reasons 
has  been  declared  innocent  before  the  law  and  irresponsible; 
there  can  therefore  be  no  reason  to  deprive  him  of  the  exercise 
and  enjoyment  of  the  Uberty  which  is  not  refused  to  other  un- 
fortunates afflicted  with  the  same  mental  diseases."  ^     This  is 


^  Lunier,  speaking  of  "Des  ^pileptiques  et  des  moyens  de  traitement  et  d'as- 
sistance  qui  leur  sont  applicables,"  A.  M.  P.  (1881),  I,  p.  217,  says  that  in  France 
only  about  fifty-two  hundred  sane  or  insane  epileptics  are  in  public  or  private 
asylums  out  of  a  known  thirty-two  thousand;  about  twenty-eight  thousand  remain 
with  their  families.  Thus  it  is  easy  to  see  how  epileptics  are  the  authors  of  crimes. 
For  Russia,  see  Marro,  "I  caratteri  dei  delinquent! "  (Turin,  1887),  p.  51,  and  Ball, 
"Les  persecutes  en  Hberte,"  R.  S.  (December,  1889). 

*  Mancini,  "Discorso  in  risposta  all*  onorev.  Righi"  (Rome,  1877),  p.  14. 
To  the  same  effect  Attorney-general  Heinor,  in  the  discussion  before  the  Societe 


526  PRACTICAL  REFORMS  [§  337 

in  conformity  with  the  abstract  juridical  principles  of  the  classical 
school,  but  not,  we  believe,  with  the  exigencies  of  social  preserva- 
tion, nor,  consequently,  with  those  of  criminal  sociology.  And 
it  shows  one  of  the  numerous  dangers  encountered  by  grafting 
psychiatry  without  due  thought  upon  the  old  trunk  of  penal 
law. 

For,  this  is  what  happens:  at  the  trial,  the  progress  of  psy- 
chiatry is  invoked  to  show  that  the  murderer  is  insane,  which 
is  all  very  well,  but  if  the  psychiatrist  or  the  positivist  declares 
that  the  ascertained  insanity,  far  from  doing  away  with  the 
danger,  only  augments  it,  then  the  abstract  principles  are  invoked 
and  meanwhile  the  danger  to  society  remains.  The  objections 
on  the  ground  of  principle  against  asylums  for  the  criminal  insane 
are  based  on  classical  theories  and  the  idea  of  moral  responsibihty 
considered  as  a  condition  for  defense  of  society;  consequently  they 
are  valueless  for  the  reasons  which  we  have  given  before.  Soon 
after  the  year  1700,  when  the  criminal  insane  were  either  hung 
or  burned,  certain  criminalists,  revolutionary  in  their  day,  claimed 
that,  on  the  contrary,  they  should  be  cured;  then,  when  they 
were  hardly  cured  or  merely  in  some  lucid  interval,  they  were 
tried  and  condemned  as  criminals.  In  our  day  this  proposition 
seems  strange,  but  it  was  the  forerunner  of  the  change  that  Bec- 
caria  so  fortunately  effected.  As  this  idea  is  accepted  to-day  by 
almost  all  classical  criminologists,  althoughit  is  in  plain  contra- 
diction to  their  principles,  it  enables  us  to  foretell  with  certainty 
the  triumph  of  our  ideas  in  the  near  future,  since  they  are  based 
on  fact.  And  now,  in  order  to  conform  to  the  principles  of  the 
positive  school,  it  is  clear  that  since  asylums  for  criminal  insane 
are  fundamentally,  like  prisons,  only  means  of  isolating  the 
individual  from  society  under  a  special  clinical  regime,  suited 
to  the  special  psycho-pathological  conditions  of  the  inmates,  we 
must  segregate  all  the  insane  who  have  been  found  guilty  of 
crime,  or  at  least,  if  the  financial  difficulties  are  too  great,  all 
the  insane  authors  of  grave  crimes.  In  a  procedure  such  as  I 
have  sketched  above  in  conformity  with  our  ideas  there  would 
be  expert  testimony  followed  by  a  sentence  of  confinement  for 
an  indefinite  time,  according  to  the  crime  and  the  psychopathic 
forms  of  the  delinquent,  with  the  guarantee,  of  course,  of  periodic 
revision.     In  the  present  state  of  afiFairs  in  any  case,  we  hold  that 

medico-Mgale  de  Paris  on  the  Gallard  proposal,  A.  H.  P.  (1876),  and  Barhier,  an 
attorney  in  an  analogous  discussion  before  the  same  society,  id.  (1879). 


§338]  PRACTICAL  REFORMS  527 

all  those  should  be  confined  who  have  been  acquitted  on  grounds 
of  insanity  and  the  convicts  who  have  become  insane  in  prison 
as  well  as  those  who  have  become  violent  in  ordmary  insane 
asylums.  The  three  divisions  of  the  proposed  Italian  law  are 
identical  with  those  which  have  been  established  m  England, 
where,  however,  among  the  prisoners  who  have  become  msane, 
only  convicts  are  sent  to  Broadmoor,  while  the  petty  delinquents 
are  sent  to  a  private  establishment  for  the  criminal  insane  called 
"Fisherton  House."  Finally,  as  regards  the  crimmal  insane,  we 
must  state  that  the  statistics  of  Broadmoor,^  of  the  Penitentiary 
of  Waldheim,2  and  other  English  statistics,'  as  well  as  those 
of  Italy,*  show  an  absolute  agreement  on  two  important  facts: 

A.  The  greater  number  of  criminal  insane  among  soldiers, 
either  through  the  effect  of  military  life  (above  all  on  neuropaths) 
or  by  the  effect  of  the  carelessness  with  which  the  army  is  re- 
cruited, or  possibly  by  a  union  of  both  causes. 

B.  The  greater  number  of  insane  criminals  as  the  crime  com- 
mitted increases  in  gravity  and  danger.  These  facts  appear  to 
recommend  most  eloquently  the  establishment  of  asylums  for 
the  criminal  insane. 

§  338.  The  Bom-Criminal  and  Capital  Punishment. 

As  to  the  class  of  born-criminals,  since  with  them,  as  Maudsley 
says,  we  are  confronted  if  not  exactly  with  a  degenerate  type,  at 
least  with  a  degenerate  variety  of  the  human  species,  and  the 
problem  consists  in  diminishing  the  number  as  much  as  possible, 
a  preliminary  question  must  be  disposed  of  first.  Would  it  not 
be  better  once  and  for  all  to  apply  capital  punishment  to  these 

^  Orange,  "The  Lunatic  Criminals  in  England,"  J.  M.  S.  (October,  1883). 
For  a  technical  description,  see  Selvatico,  "H  manicomio  criminale  di  Broadmoor," 
R.  S.  F.  (1898),  XXIV,  506. 

«  R.  C.  (1883),  fasc.  12,  p.  574.  Further  data  m  SSmal,  "Coup  de'oeil  sur  les 
folies  penitentiaires,"  an  extract  from  "Du  compte  rendu  du  congr^  de  m^ecine 
mentale  a  Paris"  (Medun,  1890). 

'  In  1873  the  Commission  of  inquiry  on  the  effect  of  the  law  of  penal  servitude 
foimd  that  three  per  cent,  of  male  prisoners,  and  three  and  eight-tenths  per  cent, 
of  female  prisoners  are  lunatics,  epileptics,  and  idiots.  Assaults,  incendiaries, 
and  rapes  are  three  times  as  numerous  as  with  the  sane.     R.  C.  (1890),  p.  464. 

*  Algieri,  "  Osservazioni  statistico-cliniche  sui  criminali  pazzi,"  A.  P.  (1894)  XV, 
408,  found  that  forty  per  cent,  of  the  insane  delinquents  examined  in  the  asylum 
at  Ambrogiana  are  murderers,  twenty-one  per  cent,  robbers,  thirteen  per  cent, 
guilty  of  assault  with  deadly  weapons,  twelve  per  cent,  brigands,  guilty  of  assault 
with  deadly  weapons,  twelve  per  cent,  brigands,  seven  per  cent,  guilty  of  rape. 
Almost  all,  viz.,  sixty-eight  per  cent.,  were  recidivists. 


528  PRACTICAL  REFORMS  [§  338 

unfortunates  when  they  commit  grave  crimes,  since  they  are  a 
continual  danger  for  society  either  in  themselves  or  by  trans- 
mitting their  anti-social  instincts  to  their  children?  In  other 
words,  under  this  head  the  much  agitated  question  of  capital 
punishment  arises  in  the  most  precise  and  peremptory  manner. 
On  it,  for  more  than  one  hundred  years,  criminologists,  philoso- 
phers, and  the  pubUc  at  large  have  disputed,  but  unfortunately 
with  a  great  amount  of  sentimental  declamation  pro  and  con, 
and  with  very  Uttle  positive  observation  or  calm  reasoning.  This 
question  legally  solved  in  Italy  (which  was  the  first  among  the 
larger  countries  to  decree  the  aboUtion  of  capital  punishment  on 
the  first  day  of  January,  1890,  having  partially  abolished  it 
twenty-four  years  before,  in  1876,  but  preserving  it  and  applying 
it  in  the  army)  was  advanced  but  not  discussed  at  the  First  In- 
ternational Congress  of  Criminal  Anthropology  at  Rome,^  and 
we  feel  that  it  should  be  briefly  dealt  with  here. 

Capital  punishment  has  its  adversaries  and  its  champions  among 
classical  and  positive  criminologists,  but  the  diversity  of  opinion 
has  a  very  different  reason  and  scope  in  the  two  schools.  For, 
while  the  classical  aboUtionists  almost  all  beUeve  in  the  more  or 
less  absolute  illegitimacy  of  the  pain  of  death,  the  positivists,  on 
the  contrary,  are  almost  unanimous  in  beUeving  that  the  death 
penalty  is  legitimate  in  principle,  while  some  of  them  admit  and 
others  deny  its  practical  advisabihty  and  utility.  It  is  my  beUef 
that  the  death  penalty  is  prescribed  by  Nature  in  every  part  of  the 
Universe  and  in  all  phases  of  universal  life.  It  does  not  seem  to 
me  to  be  in  absolute  contradiction  with  personal  rights,  because 
when  the  death  of  another  is  absolutely  necessary,  it  is  perfectly 
just,  as  a  case  of  self-defense,  whether  individual  or  social.  Among 
others,  Carrara,^  Beccaria,^  and  Romagnosi*  hold  this  view. 
Furthermore,  the  universal  law  of  evolution  shows  that  the  prog- 
ress of  every  living  species  is  due  to  a  continual  selection  brought 
about  by  the  death  of  those  less  fit  for  the  struggle  of  existence, 
and  this  selection  can,  in  humanity,  and  even,  to  a  certain  point, 
in  animals,  be  effected  artificially  out  of  respect  to  the  laws  of  life 
under  the  same  conditions  as  it  works  naturally.  It,  therefore, 
conforms  not  only  to  the  laws  of  justice,  but  to  those  of  nature, 

1  A.  C.  A.  C.  (Rome,  1886).  p.  336. 

*  Carrara,  "  Programma, "  §661. 

*  Beccaria,  "Dei  delitti  e  delle  pene,"  §  16. 

*  Romagnosi,  "  Memoria  sulle  pene  capitali,"  §  3. 


§338]  PRACTICAL  REFORMS  529 

that  society  should  effect  an  artificial  selection  within  itself,  de- 
stroying the  elements  harmful  to  its  existence,  —  anti-social,  non- 
assimilable, and  deleterious  human  beings.^  But,  the  weight 
of  these  conclusions  must  not  be  exaggerated,  and  they  must  be 
accepted,  on  the  contrary,  with  those  reservations  which  are 
always  necessary  in  complex  questions  which  cannot  be  deter- 
mined by  a  monosyllabic  answer.  For  we  must  note  that  this 
idea  of  artificial  selection,  although  true,  runs  the  danger,  when 
transported  without  precaution  into  the  sociological  sphere,  of 
entailing  exorbitant  results  if  an  exclusive  predominance  is  given 
to  the  race  over  the  individual,  or  to  material  over  moral  interests. 
On  the  other  hand,  it  must  be  tempered  by  the  necessary  balance 
between  the  rights  of  the  individual  and  society  or  between  moral 
and  material  interests  which  always  must  be  considered;  other- 
wise the  Spartan  practice  of  putting  to  death  all  individuals  who 
did  not  conform  to  type,  or  who  were  affected  with  incurable  and 
contagious  diseases  would  be  not  only  legitimate,  but  obligatory. 
Furthermore,  it  is  one  thing  to  recognize  that  capital  punishment 
can,  in  certain  cases,  be  legitimate  as  a  supreme  and  necessary 
remedy  under  abnormal  conditions  and  circumstances,  and 
another,  to  declare  that  under  normal  conditions  of  social  life 
it  is  useful  and  necessary. 

It  can  be  easily  seen  that  society  can,  under  normal  conditions, 
provide  in  some  other  way  than  by  execution  for  its  own  preser- 
vation by  preventing  the  attack  of  anti-social  elements  or  the 
perpetuation  of  their  offspring,  either  through  the  isolation  of  the 
guilty  for  an  indefinite  period,  or  deportation,  which  are  always 
within  its  power.  Putting  aside,  for  the  moment,  the  problem  of 
deportation,  it  is  a  fact  that  segregation  for  an  indefinite  period, 
surrounded  by  the  proper  guarantees,  can  form  a  true  substi- 
tute for  the  other  punishment.     On  the  other  hand,  the  utility 

'  Lombroso,  "  L'incremento  del  delitto,"  p.  79;  "Misdea  e  la  nuova  scuola 
penale";  "Troppo  presto"  in  "Appunti  al  nuova  codice,"  2d  ed.  (Turin,  1889), 
p.  22;  Garofalo,  "Criterio  positive  di  penality,"  pp.  83  et  seq.,  " Criminalogia, " 
in  the  "Biblioteca  antropologica  giuridica,"  2d.  ed.  (Turin,  1891);  "Contro  la 
corrente"  (Naples,  1888);  Camevale,  "La  questione  della  pena  di  morte  nella 
filosofia  guiridica"  (Turin,  1888);  Rivarola,  "Critica  de  la  pena  de  muerte"  (Buenos 
Ayres,  1888);  Tarde,  "Penal  Philosophy,"  Chap.  IX.  For  the  opposite  view,  see, 
among  the  most  recent  writers,  Farese,  "Selezione  e  pena  di  morte,"  in  the 
"Scuola  positiva"  (December,  1893);  Solovief,  "De  la  peine  de  mort,"  R.  I.  S. 
(March,  1898);  Peluso,  "Del  fondamento  positivo  dato  alia  pena  di  morte  della 
nuova  scuola  penale"  (Naples,  1898);  Pulido,  "La  pena  capital  en  Espafia" 
(Madrid,  1898). 


530  PRACTICAL  REFORMS  [§338 

and  defensive  efficacy  of  capital  punishment  is  problematical, 
for  when  a  man  commits  a  crime  he  is  either  carried  away  by  a 
sudden  passion  and  thinks  of  nothing,  or  else  he  acts  with 
premeditation,  and  what  determines  his  course  in  the  latter 
case  is  not  a  hypothetical  comparison  between  the  capital  pun- 
ishment and  life  imprisonment,  but  the  hope  of  impunity.  We 
should  not  be  misled  by  the  statement  of  some  prisoner,  con- 
demned to  death,  who  states  that  he  is  afraid  to  die;  for,  in  the 
first  place,  that  only  means  that  he  is  so  at  the  moment  when 
he  makes  the  statement  and  does  not  show  that  such  fear 
would  have  been  able  to  deter  him  from  crime,  because  at  the 
moment  of  its  commission,  through  psychological  impulsiveness, 
he  was  completely  dominated  by  the  criminal  temptation.  In 
the  second  place,  if  it  is  certain  that  every  prisoner  after  his 
capture  and  sentence  fears  death  more  than  life  imprisonment 
(with  the  exception  of  those  who  commit  suicide  in  prison,  and 
those  who  cynically  joke  on  the  scaffold),  it  is  no  less  certain,  as 
Carrara  remarks,  that  this  result  only  applies  to  criminals  who 
have  been  captured,  which  is  not  always  done.  Statistics  show 
that  the  variation  in  the  number  of  capital  crimes  is  independent 
of  the  number  of  condemnations  and  executions,  and  that  it 
depends  on  factors  very  different  and  more  complex,  as  can  be 
seen  in  Italy,  where  Tuscany  suppUes  a  number  of  capital  crimes 
proportionately  inferior  to  that  of  the  other  counties,  which 
allow  the  death  penalty.  Again,  we  see  in  France,  that  in  spite 
of  the  great  increase  in  the  total  of  criminaHty  and  the  growth 
of  population,  whether  through  a  spirit  of  contradiction  or  by 
contumacy,  the  number  of  murders,  poisonings,  parricides,  and 
homicides  has  decreased  from  five  hundred  and  sixty  in  1826  to 
four  hundred  and  twenty-three  in  1881,  although  capital  execu- 
tions, have  diminished  in  the  ratio  of  one  hundred  and  ninety- 
seven  to  one.  The  same  can  be  said  of  Belgium.^  Consequently, 
it  becomes  very  difficult  to  believe  that  experience  shows  the 
practical  utility  of  capital  punishment  as  an  instrument  for  the 
protection  of  society. 

In  the  last  analysis,  capital  punishment,  in  its  monosyllabic 
simplicity,  is  only  an  easy  panacea,  and  under  this  head,  it  cer- 
tainly does  not  solve  a  problem  as  complex  as  that  of  dangerous 
criminality.  The  destruction  of  incorrigibles  is  an  idea  which 
springs  to  hfe  of  itself,  and  Diderot,  even  in  his  day,  championed 
1  Francort.  "La  peine  de  mort,"  B.  U.  S.  D.  P.  (1898).  VII,  36. 


§338]  PRACTICAL  REFORMS  5S1 

it  as  a  consequence  of  the  denial  of  free  will,  saying:  "What  is 
the  mark  of  distinction  between  men  —  good  or  evil  deeds? 
A  malefactor  is  a  man  that  must  be  destroyed — not  punished."  * 
But  it  is  necessary  to  temper  this  opinion  by  a  consideration  of 
the  material  and  moral  conditions  of  social  life  and  experience, 
which  is  our  only  teacher  of  the  efficiency  of  diflFerent  punish- 
ments. However,  apart  from  these  considerations,  and  without 
alluding  to  others  which  could  be  introduced  here,  because  hence- 
forth the  question  of  capital  punishment,  hardly  considered  by 
juridical  science,  is,  above  all,  the  subject  of  a  variety  of  per- 
sonal sentiments,  I  hold  only  to  the  logic  of  facts;  —  either  some 
utility  is  sought  by  the  death  penalty  —  for  example,  the  unique 
efficiency  which  it  presents  as  a  means  of  artificial  selection  — 
and  then  it  must  be  applied  seriously  and  requires  the  courage 
of  putting  to  death,  in  Italy,  for  example,  more  than  fifteen 
hundred  individuals  annually ,2  or  else,  capital  punishment  re- 
mains written  on  the  statute  books  without  ever  being  applied, 
and  then  it  should  be  aboHshed.  Having  said  that  the  power  of 
intimidation  of  penalties  in  general,  without  excepting  capital 
punishment,  is  entirely  insignificant  as  far  as  born-criminals  are 
concerned,  and  is  lessened  still  further  by  the  fact  that  the  people 
get  accustomed  to  the  idea  of  capital  punishment,  we  can  state 
briefly  that  ten  or  twelve  executions  a  year  will  not  cure  crimi- 
nality. Furthermore,  these  few  and  tardy  executions  embody 
all  the  disadvantages  of  the  death  penalty,  and  none  of  its  ad- 
vantages, by  awakening,  on  one  hand,  a  compassion  on  the  part 
of  the  good  citizen  and  a  certain  antipathy  for  the  law,  and,  on 
the  other  hand,  the  ferocious  instincts  of  the  masses. 
This  is,  above  all,  true  when  the  executions  are  pubUc'    Finally, 

*  Diderot,  "Lettre  k  landois,"  cited  by  Mast,  "Studi  e  ritratti"  (Bologna, 
1881).  p.  214. 

*  The  following  annual  average  of  condemnations  pronounced  by  the  Assizes 
from  1875-1881: 

Homicide  in  commission  of  felony 635 

Robbery,  with  assault 218 

Simple  homicide,  not  premeditated      1808 

2661 
Subtracting  the  non-premeditated  murders  and  crimes  of  passion,  crime  not  due 
to  congenital  criminality,  there  still  remains  a  figure  in  excess  of  1500. 

'  Public  executions  are  an  outrage  to  the  sentiment  of  humanity,  which  the 
legislature  should  never  violate.  It  should,  on  the  contrary,  cultivate  it  with  the 
greatest  care  by  all  direct  and  indirect  means.  I  assured  myself  of  the  effect  of 
witnessing  an  execution  by  attending  one  in  Paris,  in  August,  1889,  which  I  de- 


5S2  PRACTICAL  REFORMS  [§338 

Lombroso  himself  says  that  the  infrequency  of  capital  executions 
has  deprived  this  form  of  punishment  of  all  its  efficiency,  either  as 
an  example  or  as  a  means  of  selection.  To  be  logical,  we  must, 
as  I  have  just  said,  execute  more  than  fifteen  hundred  a  year. 
This  is  an  easy  enough  statement,  but,  unfortunately,  in  the 
present  state  of  pubUc  opinion,  it  is  an  absolute  moral  impossi- 
biUty.^  Capital  punishment,  as  it  exists  to-day,  is  a  mere  scare- 
crow —  and  the  criminals  are  like  the  birds  —  at  first  they  beUeve 
it  real,  but  soon  they  play  in  the  shadow  of  the  scaffold.  How 
can  malefactors  be  expected  to  fear  a  statute  if  they  see,  as  a 
matter  of  fact,  that  the  executioner  never  acts?  This  is  the 
reason  why  Garofalo^  and  his  followers  are  wrong  in  believing 
that  the  news  of  the  legal  aboHtion  of  capital  punishment  could 
have  pernicious  effects  upon  our  imaginative  and  ignorant  fellow- 
citizens,  for  it  must  be  admitted  that  they  pay  less  attention  to 
legislative  formulas  than  to  their  daily  practical  appUcation; 
and  even  if  this  news  did  produce  some  disorder,  it  would  soon 
cease,  because  social  conditions  would  not  have  undergone  such 
a  change  as  would  noiu*ish  and  encourage  it.^ 

scribed  in  "Delinquenti  nell'  arte."  Aside  from  the  question  of  right  of  capital 
punishment,  I  believe  that  not  only  is  secret  execution  necessary,  but  also  that 
less  barbarous  means  than  hanging  or  guillotining  should  be  used.  The  important 
ends  of  capital  punishment  are  the  disappearance  of  the  convict  from  the  world 
and  public  notice  of  the  fact.  All  ceremony  and  sufiFering  are  useless,  and,  there- 
fore, imjustifiable.  The  death  penalty  should  be  inflicted,  as  Girardin,  among 
others,  proposed,  by  giving  the  convict  an  instantaneous  poison  and  warning  him 
that  if  justice  be  not  accomplished  by  a  certain  time,  he  would  be  put  to  death 
by  the  executioner.  The  United  States  has  adopted  electrocution  in  place  of 
this.  See  M.  L.  J.  (New  York,  March,  September,  1889;  March,  1890),  and 
the  "Tribuna  giudiziaria"  (Naples,  June,  1890);  Lacassagne,  "Les  executions 
electriques  aux  Etats-Unis,"  in  "Archives  d'anthropologie  criminelle"  (June, 
1892). 

*  What  can  be  said  of  the  scientific  loyalty  of  certain  adversaries?  In  one 
criticism  of  the  first  Italian  edition  of  this  book,  made  by  the  "Rivista  penale" 
(May,  1881),  p.  cclxxx,  I  with  silly  statements,  exclamation  points,  and  lack  of 
arguments,  made  the  gentle  reader  t-r-r-r-emble,  by  letting  him  suppose  that 
I,  a  new  Torquemada,  proposed  the  actual  execution  of  two  thousand  delinquents 
per  annum  —  while,  on  the  contrary,  I  based  an  argument  against  capital  punish- 
ment on  the  impossibility  of  such  an  holocaust. 

*  Garofalo,  "Criterio  positive  di  penalita,"  p.  87. 

'  I  wrote  this  in  the  third  edition  (1892)  and  this  forecast  has  not  been  fully 
justified.  In  Italy,  in  spite  of  the  legislative  abolition  of  capital  punishment, 
the  annual  average  of  prosecuted  homicides,  which  was  four  hundred  and  sixty- 
nine  in  1880-1886,  four  thousand  and  eighty-nine  in  1887-1889,  remains  practi- 
cally stationary  after  1890,  being  three  thousand  nine  hundred  and  ninety- three 
in  1890-1892,  four  thousand  and  thirteen  in  1893-1895,  and  three  thousand  eight 
hundred  and  sixty-eight  in  1896. 


§339]  PRACTICAL  REFORMS  533 

§  339.  Theory  that  no  Punishment  should  be  Permanent. 

Capital  punishment,  therefore,  being  discredited  as  a  means 
ordinarily  unnecessary  and  inappUcable  in  such  proportions  as 
would  render  it  efficacious  against  born  and  incorrigible  criminals, 
an  alternative  remains  between  two  eliminative  means,  deporta- 
tion for  life,  or  imprisonment  for  an  indeterminate  period  in 
special  establishments.  There  only  remains  this  alternative, 
for  we  cannot  guarantee  either  theoretical  or  practical  importance 
to  the  opinion  of  certain  German  jurists  (among  whom  we  can 
name  Holtzendorff  ^  and  Geyer^),  which  has  been  taken  up  in 
Italy  by  certain  eclectics,  that  all  life  punishment  should  be  done 
away  with.  For  example:  "If  the  punishment  must  extend 
throughout  the  entire  life  of  man  and  end  only  with  his  existence, 
its  result  is  to  destroy  the  moral  and  juridical  personality  of 
the  delinquent  in  one  of  the  essential  factors  of  human  nature  — 
the  social  nature  (of  a  super-man),  the  development  of  which 
produces  all  juridical  relations;  and  furthermore,  this  punish- 
ment is  in  opposition  to  the  paternal  functions  of  the  State  at 
the  very  instant  when  it  by  its  legal  exercise  of  them  it  declares 
that  it  recognizes  them  and  prepares  to  exercise  their  necessary 
guarantees. 

The  temporary  character  of  punishment  is  one  of  the  conditions 
of  its  legitimacy  in  the  sense  that  the  individual  liberty  of  the 
guilty  must  be  hmited  in  its  exercise  and  not  destroyed  in  its 
right,  as  would  happen  if  one  deprived  the  condemned  (poor 
murderer!)  of  all  hope  of  regaining  its  enjoyment  (so  useful  to 
society)."  This  principle  is,  as  can  be  seen,  "a  priori,"  without 
basis,  and  dangerous.  It  has  no  basis  because  it  is  impossible  to 
speak  of  a  social  instinct  in  the  most  abnormal  delinquents,  those 
to  whom  life  sentences  would  be  restricted  and  whose  instinct, 
for  the  very  reason  that  it  is  anti-social,  produces,  if  he  is  left  at 
liberty,  not  legal,  but  criminal  relations.  But  without  taking 
this  up,  it  is  axiomatic  that  the  State  can  attack  or  even  destroy 
individual  liberty  when  necessity  demands.  It  is  dangerous, 
because,  on  one  hand,  it  leaves  honest  citizens  defenseless  against 
the  most  dangerous  criminals,  while,  on  the  other  hand,  the 
concept  of  penalties,  "brief  but  intense"  (with  which  the  Italian 

1  Holtzeedorff,  "Mord  und  Todesstrafe,"  p.  225;  "Die  KUrzungsfahigheit  der 
Freiheitsstrafen  "  (1861). 

*  Geyer,  "Delle  pene  carcerarie,"  in  the  "Rivista  penale"  (September,  1877), 
p.  143.     See  also  TaUock,  "Penological  and  Preventive  Principles,"  Chap.  FV. 


534  PRACTICAL  REFORMS  [§340 

penal  code  is  inspired),  which  forms  the  natural  corollary  of  this 
"a  priori"  principle,  represents  a  survival  of  torture.  Further- 
more, "brief  but  intense"  punishment  has  this  essential  fault, 
that  because  of  its  brevity  it  is  useless  for  social  defense  and 
because  of  its  intensity,  it  is  useless  for  individual  reform.^ 

§  340.  Deportation  for  Life. 

So,  as  has  already  been  said,  deportation  or  indeterminate 
perpetual  imprisonment  are  necessary  for  the  most  dangerous  and 
incorrigible  deUnquents  who  always  return  to  some  form  of 
atavic  criminality.  Much  has  been  written  on  deportation,  in 
Italy  especially,  when,  in  the  last  few  years,  a  lively  polemic  has 
taken  place  between  Beltrani  Scalia,  who  vigorously  opposes  it, 
and  Cerruti,  Carpi,  and  De  Foresta,  who  uphold  it  with  no  less 
vigor.  The  host  of  criminalists  are  divided  into  two  camps. 
Not  being  able  to  take  it  up  from  the  beginning,  I  will  here  refer 
to  the  excellent  works  of  Beltrani  Scaha^  and  De  Foresta.'  The 
experience  of  the  nations  (especially  England),  which  after  adopting 
deportation  to  a  great  extent,  have  been  forced  to  renounce  it, 
is  certainly  a  ground  for  consideration,  yet  only  in  so  far  as  deporta- 
tion such  as  has  been  practised  up  to  the  present  day  is  con- 
cerned; that  is  to  say,  with  criminal  colonies.  For,  as  Beltrani 
Scalia  correctly  says,  it  is  better  to  construct  them  at  home  where 
they  cost  less  and  do  better  service.  The  French  example  is  no 
more  encouraging,  at  least  in  its  practical  applications.  Yet 
deportation  has  one  good  ground  for  existence;  when  it  is  for  life, 
and  consequently  with  the  least  possible  chance  of  repatriation, 
then  it  furnishes  the  best  means  of  purging  society  of  its  dangerous 
members  and  frees  it  from  its  obUgation  to  support  them.  But 
then  it  can  only  consist  in  simple  deportation,  that  is,  as  it  originally 
was  in  England,  in  the  abandonment  of  the  exiles  on  a  desert 
island  or  continent  with  the  necessary  means  to  Uve  there  by 

^  A  discussion,  resulting  in  favor  of  the  negative,  took  place  on  the  increase 
of  short-term  sentences  before  the  International  Union  of  Penal  Law  at  Antwerp 
(1894).     See  B.  U.  I.  D.  P.  (1895).  V,  85,  146,  177. 

*  Beltrani  Scalia,  "La  deportazione"  (Rome,  1874);  "La  riforma  peniten- 
ziaria." 

*  De  Foresta,  "he  deportazione"  (Rome,  1876);  "Ne  carcere  ne  patibolo,"  in 
the  "Riv.  care."  (1880),  pp.  81  et  seq.,  and  to  the  same  effect  in  the  "  Comptes 
rendus  du  congres  penitentiaire  international  de  Stockholm"  (1875).  On  his  side, 
Desprez,  "L' abolition  de  I'emprisonnement"  (Paris,  1868),  held  that  prisons 
must  return  to  their  old  function  of  isolating  the  accused,  while  deportation  and 
farming  colonies  would  be  reserved  for  the  condemned. 


§  340]  PRACTICAL  REFORMS  535 

work,  or  else  by  transporting  them  to  barbarous  countries  where 
these  men,  who,  half-civihzed  in  civiUzed  countries,  represent  a 
half-civihzation.  There,  by  the  very  organic  and  psychic  qualities 
which  made  them  robbers  or  murderers  in  a  civiHzed  society, 
they  become  temporary  tribal  chiefs  or  leaders  in  war  among  the 
savage  populations  who  know  no  court  to  hinder  their  offenses. 
But  with  the  Itahans,  it  is  possible,  and  in  fact,  too  easy,  to 
practise  deportation  within  the  country  itself  by  sending  certain 
classes  of  delinquents  to  reclaim  land,  which  malaria  renders 
uninhabitable.  If  this  disease  demands  human  hecatombs  be- 
fore it  can  be  conquered,  it  is  much  better  to  immolate  criminals 
than  honest  farmers.  Let  us  have  a  little  less  regard  for  criminals, 
and  a  Uttle  more  for  peasants  and  honest  workers.  Let  the 
guilty  become  pioneers  of  civilization  and  regain  by  their  death 
the  esteem  of  humanity  which  they  have  so  cruelly  offended.^ 
Up  to  the  last  few  years  trans-oceanic  deportation  was  only  a 
dream  to  the  ItaUans  because  of  the  diflSculty  of  finding  suitable 
places,  as  is  shown,  for  example,  by  the  continual  protestation  of 
the  AustraUan  colonies  against  the  deportation  of  French  recidi- 
vists. Franklin's  famous  question  is  constantly  repeated:  "What 
would  you  say  if  we  deported  our  rattlesnakes  into  England?" 
But  since  Italy  possesses  the  colony  of  Erythea,  the  idea  of  de- 
portation has  gained  ground.  In  May,  1890,  I  proposed  in  the 
Chamber  of  Deputies  to  experiment  with  a  penal  colony  in  African 
possessions.  Prius,  for  his  part,  was  absolutely  opposed  to  the 
establishment  of  deportation  for  punishment  in  Belgium,  after 
the  estabUshment  of  the  Congo  Free  State;  ^  but  I  do  not  think 
that  deportation  can  or  should  be  its  own  end.  The  adult  penal 
colony  must  be  the  advance  guard  of  the  free  farm  colony.'  In 
any  event,  the  admission  of  deportation  for  born  and  incorrigible 
criminals,  either  at  home  or  abroad  raises  the  problem  of  the  form 

1  Ferri,  "Lavoro  e  celle  dei  condamnati,"  and  "Discorso  al  congresso  peni- 
tenziario  di  Roma,"  A.  C.  A.  C.  (Rome,  1887),  I,  422.  This  thought  became  law 
in  the  proposal  Giolitti  (5  December,  1902)  passed  by  the  Chamber  of  Deputies, 
2  March,  1904.  See  Franchi,  "II  progetto  Giolitti  per  il  lavoro  dei  condemnati 
air  aperto  e  il  diritto  penale."  In  Germany,  the  legal  congress  at  Posen  (February, 
1898)  unanimously  (less  five  votes)  resolved  that  "deportation  is  not  a  good  means 
of  repression  and  there  is  no  use  experimenting  with  this  penalty."  See  also 
Korn,  "1st  die  Deportation  unter  den  heutigen  Verhaltnissen  als  Strafmittel 
praktisch  verwendbar?"  (Berlin,  1899)  (a  subject  submitted  Holtsendorff-Stiftung), 
and  on  the  subject  Mittermaier,  Z.  G.  S.  (1898),  XIX,  85. 

*  Prins,  "Criminahte  et  repression,"  p.  196. 

'  Ferri,  "II  progetto  sui  delinquenti  recidivi,"  S.  P.  (March,  1899). 


536  PRACTICAL  REFORMS  [§  340 

of  isolation.  A  "House  for  Incorrigibles "  should  be  instituted, 
where  those  guilty  of  crime  serious  enough  to  make  them,  through 
their  determinative  motives  and  circumstances,  born-criminals  and 
those  who  are  guilty  of  a  certain  number  of  recidivic  crimes,  can 
be  isolated  from  society,  some  for  life,  others  for  an  indeterminate 
period  extending  until  the  proof  is  given  that  they  are  no  longer 
dangerous,  which  amounts  to  the  same  thing,  for  we  are  dealing 
with  hopeless  cases. 

The  congenital  nature  and  hereditary  transmissibility  of 
criminal  tendencies  fully  justify  the  words  of  Quetelet:  "Moral 
maladies  are  like  physical  maladies,  some  contagious,  epidemic, 
and  hereditary.  Vice  is  inherited  in  some  famihes,  like  scrof- 
ula or  consumption.  The  greater  part  of  the  ills  which 
attack  nations  is  due  to  certain  families,  which  should  be 
under  special  surveillance,  similar  to  that  to  which  suspected 
victims  of  contagious  disease  are  subjected."^  So  Aristotle 
speaks  of  a  man,  who  repUed  to  an  accusation  of  having  struck 
his  father,  "My  father  struck  my  grandfather,  my  grandfather 
struck  my  great-grandfather,  and  you  see  my  son,  before  he 
reaches  man's  estate,  will  have  spared  me  neither  violence  nor 
blows:"  2  And  Plutarch  adds,  "The  children  of  the  vicious  and 
the  wicked  take  the  nature  of  their  parents."  ^  Thus  is  explained 
the  intuition  of  Plato  who,  while  "admitting  in  principle  that 
children  should  not  be  visited  with  the  sins  of  their  fathers,  be- 
lieved in  the  deportation  of  men  as  incorrigible,  whose  fathers 
and  grandfathers  have  undergone  capital  punishment."  *  The 
thought,  which  Carrara  qualifies  as  false,  seems  very  just.  Realiz- 
ing, for  example,  that  when  Demetz  founded  the  famous  farming 
colony  at  Mettray,  in  1839  (which  was  so  bruited  about  for  a 
time  and  then  forgotten,  as  is  usual),  eight  hundred  and  seventy- 
one  children  out  of  four  thousand  four  hundred  and  fifty-four 
were  children  of  convicts,  the  natural  result  was  a  belief  that 
the  State  should  not  exile,  but  take  care  of  these  unfortunate 

^  Quetelet,  "Du  syst^me  social  et  des  lois  qui  le  regissent"  (Brussels,  1878), 
Bk.  II,  §  11,  Chap.  III. 

^  Aristotle,  Ethics,  VII. 

'  Plutarch,  "Opera,"  Chap.  XIX.  To  the  same  effect,  Lucas,  "Traite  physio- 
logique  et  philosophique  de  I'heredite  morale"  (Paris,  1897);  Morel,  "Traite 
des  degenerescences  de  I'espece  humaine"  (Paris,  1857);  Despine,  "Psychologie 
naturelle";  Lombroso,  "L'uomo  delinquente,"  2d  and  3d  editions;  Thomson,  "The 
Hereditary  Nature  of  Crime,"  in  the  "Journal  of  Mental  Sciences"  (1870);  Ribot, 
"L'heredite  psychologique,"  3d  edition. 

*  Carrara,  "Programma,"  §647  note. 


§341]  PRACTICAL  REFORMS  537 

families,  and,  following  Crofton's  proposition,  put  the  children 
of  convicts  in  houses  of  reformation  and  industrial  schools.^ 

§341.  Indeterminate  Segregation. 

In  Italy,  Lombroso,  Curcio,  Barini,  Doria,  Tamassi,  and  Garo- 
falo;  ^  in  France,  Despine,  Labatiste,  Tissot,  Minzloff,  Leveille; ' 
in  England,  May;*  in  Germany,  Kraepelin  and  Lillenthal,*  in 
Austria,  Wahlberg; "  in  Switzerland,  Guillaume;  ^  in  America, 
Wines  and  Wayland;  *  in  Holland,  Van  Hamel,®  and  in  Portugal, 
Lucas,^°  among  many  others,  all  agree  on  the  proposition  of  per- 
manent or  indeterminate  isolation  for  adult  recidivists.  But,  I 
believe  that  the  number  of  relapses,  necessary  to  estabUsh  in- 
corrigibility must  vary  with  the  malefactor  and  the  crime.  For 
example,  murderers  and  homicidal  robbers  can  be  imprisoned  for 
life  for  one  crime,  if  the  expert  recognizes  them  as  born-criminals. 
For  lesser  crimes,  three  or  four  repetitions  may  be  necessary  to 
establish  incorrigibility.  Such  ideas  are  not  far  from  practical 
application;  above  all,  in  the  countries  where,  classical  criminal 
theories  having  less  authority,  practical  propositions  meet  less 
opposition  at  the   hands   of   metaphysical   prejudice.     Thus   in 

^  R.  C,  I,  89.  See  also  Gamier,  "Le  criminel  instinctif  et  les  droits  de  la 
defense  sociale."  A.  H.  P.  (1890),  XXIII,  5. 

*  Lombroso,  "L'uomo  delinquente,"  2d  ed.,  p.  437;  Barini  against  Chimera, 
*' Penitenziario  per  gli  incorreggibili,"  in  the  R.  C.  (1875),  p.  454;  Doria,  "Peni- 
tenziario  per  gli  incorrigibili,"  R.  C.  (1875),  p.  523;  Tamassia,  R.  F.,  Ill,  p.  683; 
Garofalo,  "Criterio  positive  di  penality,"  "Criminalogia  ";  Garqfalo  and  Carelli, 
"Dei  recidivi  e  della  recidiva,"  in  the  "Trattato  di  diritto  penale  pubblico  dal 
Cogliolo"  (Milan,  1891). 

'  Despine,  "Psychologie  naturelle,"  III,  500;  Labatista,  "Essais  sur  les  insti- 
tutions penales  des  Romains"  (Paris,  1875);  Tissot,  "Introduction  philosophique 
k  I'etude  du  droit  penal,"  IV,  Chap.  IV,  §  4;  "Le  droit  penal,"  I,  477;  Minzloff, 
"Etudes  sur  la  criminalite,"  in  the  "Philosophic  positive"  (September,  Decem- 
ber, 1881);  SeveiUe,  B.  U.  I.  D.  P.  (1893),  p.  83. 

*  May,  "The  Treatment  of  Habitual  Criminals"  (London,  1880). 

»  Kraepelin,  "La  colpa  e  la  pena,"  p.  48;  LiUienthal,  B.  U.  I.  D.  P.  (1890), 
p.  64. 

*  Wahlberg,  in  the  "Comptes  rendus  du  congr^  p^nitentiaire  international  de 
Stockholm"  (1879). 

^  Guillaume,  C.  R.  (1879),  I,  456. 

«  Wines,  C.  R.  (1879),  I,  450,  and  M.  B.,  "La  r^forme  p^nitentiaire  aux 
fitats-Unis,"  in  the  "Actes  du  congr^s  p^nitentiaire  international  de  Rome" 
(1887),  II,  p.  727;  Wayland,  "Incorrigible  Delinquents,"  summarized  in  R.  C. 
(1888),  p.  558. 

»  Van  Hamel,  "Rapport  sur  les  moyens  pour  combattre  la  r^dive,"  B.  U.  I. 
D.  P.  (1889),  p.  92. 

"  Lucas,  "Rapport,"  B.  U.  I.  D.  P.  (1889),  p.  104. 


5S8  PRACTICAL  REFORMS  [§341 

France,  after  the  pamphlets  of  Petit  ^  and  Migneret '  and  especi- 
ally after  the  propaganda  of  Reinach,'  followed  as  it  was  by  many 
similar  publications  *  and  preceded  by  Michaux/  the  law  of  1838 
was  promulgated,  which  provides  for  the  deportation  for  life  of 
delinquents  guilty  of  a  certain  number  of  repeated  crimes.'  Murray 
Brown  and  Baker  outUned  before  the  Congress  of  Stockholm  and 
developed  before  the  Prison  Society,^  the  system  of  "cumulative 

^  PetU,  "Rapport  sur  la  repression  de  la  r^cidive,"  B.  S.  G.  P.  (February, 
March,  1878). 

*  Migneret,  "La  surveillance  l^ale  en  France,"  in  the  "Revue  critique  de 
legislation." 

*  Reinaeh,  "Les  r^cidivistes"  (Paris,  1882). 

*  Nivelle,  "De  la  recidivite  au  point  de  vue  penitentiaire"  (Paris,  1882); 
Desportes,  "  La  recidivite  "  (Paris,  1883),  with  a  full  bibliography;  B6renger,  "  Propo- 
sition de  la  loi  relative  aux  moyens  pr^ventifs  de  combattre  la  recidive,"  B.  S.  G.  P. 
(April,  1884).  For  the  Italian  project  on  delinquent  recidivists,  see  Ferri,  speech 
in  the  Italian  Parliament,  S.  P.  (March,  1899).  See  also  Griffith,  "Sur  le  traite- 
ment  pratique  de  la  recidive,"  A.  C.  A.  C.  (Geneva,  1897),  p.  34;  Manzini,  "La 
recidiva  nella  sociologia,  nella  legislazione  e  nella  scienza  penale"  (Florence,  1899). 

'  Michaux,  "Etude  sur  la  question  des  peines"  (Paris,  1875),  with  full  historical 
notes  on  English  deportation. 

*  For  discussion  in  Italian  Parliament,  see  R.  C.  (1883),  pp.  343,  393.  For 
applications  of  this  law,  which  are  not  satisfactory  and  which  cannot  be  ameliorated 
by  a  change  of  officials,  because  the  vice  is  in  the  institution  itself,  see  Birard, 
"Resultats  de  la  loi  du  27  Mai  1885  sur  la  relegation  des  recidivistes,"  A.  A.  C. 
(January,  1890,  May,  1897);  Jacquin,  B.  S.  G.  P.  (Paris,  1890),  p.  785;  Dislere, 
"Rapports  annuels  sur  I'application  de  la  loi  pour  la  relegation  des  recidivistes"; 
Moncelon,  "Le  bagne  et  la  colonisation  penale  a  la  Nouveile-Caledonie"  (Paris, 
1886);  Nicomide,  "La  relegation  collective  a  I'tle  des  Pins  en  1887-1889"  (Roche- 
fort,  1889);  Nattan,  "La  transportation  a  la  Nouveile-Caledonie,"  in  the  "Revue 
d'evolution"  (Paris,  May,  1891);  Garraitd,  "Traite  de  droit  penal  frangais"  (Paris, 
1888),  I,  473,  II,  335;  Legrand,  "La  Nouveile-Caledonie,"  A.  A.  C.  (January, 
1883);  Cor,  "De  la  transportation"  (Paris,  1895);  Mimande,  "Forgats  et  pro- 
scrits"  (Paris,  1897)  and  "Criminopolis"  (Paris,  1897);  Blanchet,  "Transporta- 
tion et  colonisation  penale  a  la  Nouveile-Caledonie,"  in  the  "Revue  penitentiaire 
et  parlementaire"  (10  January,  1898).  See  also  the  discussions  before  the  Societe 
des  prisons  de  Paris,  report  in  the  "Revue  penitentiaire"  (April,  1897,  April,  1889). 
The  Chairman  of  the  Commission  of  the  French  Chamber  of  Deputies,  Hauss- 
mann,  fully  reviewed  the  project  in  1891,  showing  the  inconvenience  of  deporta- 
tion to  New  Caledonia.  Each  deportation  costs  one  himdred  and  fifteen  dollars 
for  travelling  expenses,  and  thirty-five  dollars  per  diem  for  support  in  the  colony. 
The  number  of  exiles  is  twelve  himdred  per  annum.  The  expenses  of  the  officers, 
the  salary  of  laborers,  of  one  dollar  a  day,  rations,  deportation  of  the  families  of 
the  prisoners,  and  concessions  to  freed  convicts  who  settle  in  the  colony,  must  be 
added. 

^  Murray  Brown,  "La  recidive  en  Angleterre,"  S.  S.  G.  P.  (April,  1878); 
Baker,  "La  lutte  contre  le  crime,"  id.  (May,  1878);  "Le  systeme  cumulatif," 
id.  (July,  1878);  "The  Cumulative  System,  The  War  with  Crime"  (London, 
1889),  pp.  24  et  seq.  France  has  established,  together  with  conditional  punishment, 
the  progressive  increase  of  punishment  for  recidivity,  by  the  law  of  27  March,  1891. 
See  Biranger,  "Rapport  sur  la  proposition  d'aggravation  progressive  des  peines 


§  341]  PRACTICAL  REFORMS  539 

and  progressive  sentences"  adopted  (although  not  generally)  in 
England  in  cases  of  obstinate  recidivity,  increasing  the  term  of  im- 
prisonment for  each  oflPense  with  geometric  precision.  This  system, 
sketched  by  Field  and  Walton  Pearson  at  the  meeting  of  the 
English  Society  for  the  Advancement  of  the  Social  Sciences,* 
and  later  by  Cox  and  Call  ^  at  the  meeting  of  1874,^  was  already, 
according  to  Monat,  adopted  by  the  Indian  Code.  It  has  since 
been  applied  in  Japan,  by  a  decree  which  inflicts  life  imprisonment 
for  the  fourth  repetition  of  a  crime.*  The  Canadian  representative 
at  the  Congress  of  Stockholm  presented  a  report  in  which  he  said, 
"The  number  of  crimes  is  increased  by  the  repetition  of  sentences 
of  short  duration.  After  their  first  sentence,  a  great  many  pris- 
oners of  this  kind  become  professional  delinquents  (true  delin- 
quents by  acquired  habit).  Professional  robbers,  habitual 
delinquents,  except  in  exceptional  cases,  must  be  condemned 
for  life  or  for  a  term  equal  to  that  which  they  will  Uve."  *  The 
proposed  Russian  penal  code,^  the  proposal  before  the  Swiss 
legislature,  and  the  proposed  Italian  penal  code,  show  that  a 
new  light  is  dawning  at  last  in  the  sphere  of  criminal  legislation, 
another  indication  of  the  approaching  positivist  triumph.  Senator 
Berenger  complimented  this  school  by  presenting  a  law  providing 
for  increased  punishment  in  cases  of  recidivity.  This  has,  to- 
gether with  conditional  punishment,  become  the  law  of  France.'^ 
It  is  probable,  therefore,  that  the  classical  jurists  themselves  will 
end  in  adopting  indeterminate  seclusion  for  incorrigibles,  as  they 
must  sooner  or  later  advocate  asylums  for  the  criminal  insane, 
two  innovations  equally  contrary  to  the  purity  of  their  juridical 
principles.  At  the  Penitentiary  Congress  at  St.  Petersburg, 
this  double  question  was  presented  for  the  first  time:  "Can  it  be 
admitted  that  certain  delinquents  must  be  considered  as  incor- 
rigible; if  so,  what  means  can  be  used  to  protect  society  against 
them.?"    And  Spazowitch,  in  his  report  before  the  law  society 

en  cas  de  r^idive  et  de  leiir  attenuation  en  cas  de  premier  delit,"  B.  S.  G.  P.  (Paris, 
1890);  Parmentier,  "La  loi  sur  Tattenuation  et  I'aggravation  des  peines,"  id.  (April, 
1891),  p.  436;  Capitant,  "La  loi  du  27  Mars  1891,"  in  the  "Revue  critique  de 
legislation"  (June,  1891). 

1  October,  1871.  *  Chief  of  Police  of  Glasgow. 

»  R.  C.  (1871),  p.  514.  ■•  R.  C.  (1873),  p.  428.  »  C.  R.,  I.  450. 

'  Russian  Penal  Code.  Proposal  of  the  commission  for  amendment  (St. 
Petersburg,  1883),  p.  22,  Art.  56. 

^  BSranger.  "Proposition  de  loi  sur  I'aggravation  progressive  des  peines  ea 
cas  de  recidive  et  de  leur  attenuation  en  cas  de  premier  d^lit,"  in  the  "Bulletin  de 
la  Societe  gen^rale  des  prisons"  (May,  1884). 


540  PRACTICAL  REFORMS  [§  342 

of  St.  Petersburg,  recognized  that  "this  question  shows  the  mark 
of  its  origin.  Of  all  the  questions  on  the  program,  it  alone 
appears  inspired  by  the  principles  of  the  new  positivist  school  of 
criminal  anthropology,  whose  theories,  spreading  far  from  Italy, 
their  native  land,  tend  to  reform  radically  both  science  and  legisla- 
tion, penal  law  and  porcedure,  the  concept  of  crime  and  the  means 
of  its  suppression."  And  the  Congress  approved  of  special 
measures  against  recidivists.^  The  "Union  Internationale  du  droit 
penal"  followed  its  example  in  1890,  at  Berne.^ 

§  342.  The  Cellular  System. 

We  have  now  reached  the  fundamental  problem  of  the  practi- 
cal organization  of  the  indeterminate  segregation  of  born-criminal 
and  incorrigible  recidivists.  As  Tarde  said,  "Two  great  penal 
inventions  have  arisen,  or  rather  have  been  developed,  within 
the  last  hundred  years.  They  are  objects  of  competition  among 
the  various  countries;  penal  colonization,  of  which  deportation 
is  only  an  important  form,  and  the  cell." '  The  latter  has 
greatly  predominated  since  it  has  been  reintroduced  from 
America  into  Europe,  where  the  cellular  prison  of  San  Michele 
at  Rome  and  the  prison  at  Ghent  were  its  forerunners.  The 
cellular  system,  born  of  the  reaction  against  the  frightful  physical 
and  moral  putrefaction  of  the  convicts  in  the  promiscuity  of  the 
prisons  and  galleys,  still  has  many  champions.  This  is  partially 
due  to  the  spirit  of  pietism  and  reUgious  penitence,  which  always 
accompanies  it.  But,  the  system  cannot  stand  objective  criti- 
cism. And,  indeed,  a  reaction  against  it  has  already  begim  among 
the  penitentiarists.  At  the  beginning,  absolute  and  continuous 
isolation  day  and  night,  "solitary  confinement,"  was  advocated. 
Soon,  however,  it  was  seen  that  this  did  not  tend  to  the  reform  of 
the  guilty,  and  the  severity  was  tempered  by  visits  from  the 
chaplin,  warden,  and  inspectors.    This  is  "separate  confinement." 

^  "Resoconto  del  congresso  penitenziario  de  Pietroburgo,"  in  R.  C.  (July,  1890); 
Jdy,  "Le  4^  congres  p>enitentiaire  international,"  in  the  "Archives  d'anthropologie 
criminelle"  (September,  1890).  See  also  the  reports  of  Crocknay,  Sparoicich, 
Arenal,  Alonghi,  AnmutzboU,  Gramantieri,  Wahoviich,  Dubois,  Latisckeff,  and 
Sichort. 

*  B.  U.  I.  D.  P.  (Berlin,  1891),  pp.  210,  232;  (1892),  p.  234.  See  also  Thiry, 
Alimena,  Van  Hamel,  Mans,  and  Morel,  "Des  mesures  applicables  aux  incorrigi- 
bles,"  A.  C.  A.  C.  (Brussels,  1893),  pp.  56,  394,  432;  Lomhroso,  "Le  traitement 
du  criminel  ne  et  du  criminalolde,"  id.  (Geneva,  1897),  pp.  143  and  320;  "L'uomo 
delinquente,"  5th  ed..  Vol.  Ill;  Bessiere,  "La  loi  penale  et  les  delinquents  incor- 
rigibles"  (Paris,  1899).        »  Tarde,  "Penal  Philosophy"  (Boston,  1912). 


§  342]  PRACTICAL  REFORMS  541 

Later,  it  was  found  that  it  was  important  to  have  isolation 
only  during  the  night.  At  the  Auburn  prison,  the  system  was 
adopted,  to  which  it  has  given  its  name;  solitary  confinement 
during  the  night  and  labor  in  common  during  the  day,  with  the 
constant  requirement  of  silence.  But,  then,  when  in  spite  of  the 
triple  panacea  of  isolation,  work,  and  education  (above  all,  reli- 
gious), the  number  of  recidivists  increases,  it  does  not  seem  reason- 
able to  subject  a  man  for  months  and  years  to  a  monastic  life 
(like  that  of  a  Trappist)  in  a  monstrous  human  hive  (which 
Bentham  advocated  before  I'Assemblee  constituante  frangaise 
under  the  name  of  "panoptic")  and  to  expose  him  at  the  expiration 
of  his  term,  from  the  moment  that  he  crosses  the  prison  doorsill, 
to  all  the  temptations  of  an  environment  to  which  his  lungs  are 
unaccustomed.  Thus,  the  progressive  system  was  invented,  first 
in  England  on  the  initiative  of  Henderson  and  Du  Cane,  then 
in  Ireland,  under  the  name  of  the  Irish  gradual  system,  or  the 
system  of  Colonal  Crofton.  It  would  be  difficult  to  imagine 
anything  more  symmetrically  perfect  or  more  in  conformity  with 
the  Heckelian  law  that  "ontology  sums  up  philogeny,"  for  it 
resumes  all  precedent  systems  making  each  a  phase  of  the  gradual 
system.  It  begins  with  a  philadelphian  period  of  absolute  isola- 
tion "so  that  the  convict  may  commune  with  his  conscience," 
or  "so  that  he  may  obtain  an  intense  impression  of  forethought 
and  fear."  Then  comes  an  Auburn  term  of  isolation  by  night  and 
common  work  by  day  (when  they  make  him  work)  with  the 
famous  obUgation  of  silence.  After  that  period,  comes  an  inter- 
mediate term  in  a  farming  colony,  with  daily  work  without  the 
establishment,  as  a  convalescing  period,  during  which  the  lungs 
get  reaccustomed  to  free  air.  This  is  the  addition  made  by 
Crofton  to  the  English  system.  This  is  followed  by  a  period  of 
conditional  liberation  ("ticket  of  leave"),  in  which  the  prisoner 
is  freed  from  the  last  part  of  his  sentence,  if  during  the  period  or 
time  immediately  succeeding  it,  he  commits  no  new  crime.  The 
progressive  or  regressive  passage  from  one  period  to  another  is 
automatically  regulated  by  the  number  of  marks  gained  or  lost 
by  good  or  bad  conduct.  But  only  a  purely  negative  value  can 
be  assigned  to  such  surveillance.  The  Irish  or  gradual  system  is 
well  on  the  way  to  be  paramount  throughout  Europe. 

Even  Belgium,  which  until  the  present  has  been  most  faithful 
to. the  pure  cellular  system,  drew  away  from  its  purism  under  the 
influence  of  daily  experience  and  was  the  first  continental  country 


542  PRACTICAL  REFORMS  [§  342 

to  introduce  (in  1888)  conditional  punishment,  the  natural  result 
of  the  abuse  of  short-term  sentences.  It  cannot  be  denied  that  the 
Irish  system  is  better,  or  less  bad,  than  the  others,  but  it  must  not 
be  forgotten,  however,  that  a  great  many  of  the  quasi-miraculous 
effects  of  reform  and  diminution  of  recidivity  and  crime  (eflFects 
which  are  celebrated  in  the  name  of  each  new  system,  and  which 
sooner  or  later  are  found  wanting)  were  due  in  Ireland  to  the 
large  American  emigration  of  convicts  conditionally  liberated. 
This  emigration  reached  a  proportion  of  forty-six  per  cent.  Nor 
must  it  be  forgotten  that  this  system,  requiring  as  it  does  more 
than  any  other  system,  a  capable  personnel,  is  less  difficult  of 
application  in  a  country  like  Ireland  with  but  a  few  hundred 
prisoners  than  in  Italy,^  with  its  terrible  "stock  of  malefactors," 
as  Rienzi  said,  amounting  to  many  tens  of  thousands.  But  what 
we  deny  and  what  we  admit  only  as  accessory  (even  for  the 
detention  of  the  accused  after  the  Grand  Jury  has  returned  a 
true  bill)  is  the  right  to  exist  of  the  cellular  system,  which  reaches 
the  heighth  of  absurdity  and  inhumanity  in  life  sentences.  As 
I  said  in  1886,  I  will  always  repeat:  the  cellular  system  is  one  of 
the  aberrations  of  the  nineteenth  century.  A  cellular  prison  is 
inhuman,  because  it  eliminates  or  destroys  the  social  instinct, 
already  largely  atrophied  in  criminals,  and  because  it  results  in 
insanity  or  consumption  (through  onanism,  lack  of  exercise,  and 
bad  air),  and  because  it  induces  penitentiarists,  in  order  to  avoid 
these  faults,  to  construct  comfortable  cells  for  murderers,  which 
is  an  unpardonable  and  revolting  insult  to  the  hovels  of  the 
honest  poor.  Psychiatry  has  even  registered  a  special  form 
of  alienation,  called  "prison  mania,"  and  medicine  recognizes 
"prison  consumption"  as  a  disease. 

The  cellular  system  cannot  be  effective  in  the  reform  of 
amenable  prisoners  (in  cases  of  term  imprisonment)  because  it 
enfeebles,  in  place  of  strengthening  the  social  and  moral  sense 
of  the  prisoners,  and  also  because,  unless  the  social  environ- 
ment is  bettered,  it  is  useless  to  bestow  care  upon  a  prisoner, 
who,  upon  his  release,  will  find  the  same  conditions  which 
led  him  to  crime  uneffaced  by  an  efficient  social  foresight. 
The  cellular  system  is  inefficacious  also,  because  the  moral  isola- 
tion, which  is  its  object,  is  unobtainable.     The  prisoners  find  a 

^  The  Italian  law  of  2  March,  1904,  providing  for  the  labor  of  convicts  in  wUd 
and  swampy  land,  with  an  express  and  definite  renunciation  of  the  Irish  system, 
has  borne  out  this  which  I  wrote  in  my  third  edition  in  1892. 


§  343]  PRACTICAL  REFORMS  543 

thousand  means  of  communication,  either  in  the  hour  of  exercise, 
by  writing  in  the  books  given  them  to  read,  or  on  the  soil  of  the 
courts  in  which  they  walk,  or  by  striking  on  the  wall  according 
to  a  conventional  alphabet.  Lombroso,  in  "I  paUmsesti  del 
carcere,"  gives  clear  proofs  of  this.  Scientists  and  the  world  at 
large  believe  in  good  faith  that  a  prison,  especially  if  cellular,  is 
a  mute  and  paralytic  organism,  lacking  tongue  and  hands,  because 
the  law  here  decreed  that  it  should  be  silent  and  still.  But  no 
decree,  however  forcefully  sustained,  can  prevail  against  the 
nature  of  things:  this  organism  speaks  and  is  silent,  and  some- 
times strikes  and  kills  despite  all  the  decrees.  But,  as  always 
happens  when  a  necessity  of  our  nature  conflicts  with  law,  it  is 
manifested  in  the  most  unexpected,  hidden,  and  unforeseen 
ways.^  Lastly,  the  cellular  system  is  too  expensive  to  be  practical. 
Thus,  notwithstanding  that  the  legislatures  of  England,  France, 
and  Italy  have  enacted  it  in  codes  or  special  laws  for  all  imprison- 
ments, it  fortunately  has  been  impossible  to  give  it  complete  appli- 
cation because  of  the  enormous  expense  which  it  entails.  It  has 
even  been  entirely  abandoned  in  Italy  by  the  law  of  2  March, 
1904.  For  it  has  been  seen  that  it  is  too  great  a  burden  on  the 
honest,  either  by  the  taxes  required  or  by  the  moral  and  material 
competition,  which  will  not  be  very  extensive,  seeing  the  number 
of  laborers  imprisoned,  but  which  is  very  intense  in  the  locality 
of  the  prison,  permitting  industrial  labor,  while  in  spite  of  both 
taxes  and  competition,  the  State  does  not  cover  expenses,  because 
cellular  isolation  is  clearly  not  suited  to  an  advantageous  organiza- 
tion of  labor.^ 

§  343.  Outdoor  Work  in  Fanning  Colonies. 
Isolation  by  night  is  sufficient,  and  this  reduces  the  expense. 
Outdoor  labor  is  the  only  useful  isolation  for  the  convicts,  since 
man  is  what  he  eats  and  breathes.  Air,  light,  exercise,  labor  in 
the  fields,  can  of  themselves,  in  a  country  like  Italy  with  a  southern 
race  and  a  large  proportion  of  peasants,  regenerate  the  less  de- 
generate animals,  hinder  in  all  cases  consumption  and  the  brutali- 
zation  of  the  incorrigible,  while  at  the  same  time,  it  gives  them  a 
remunerative  form  of  work.     Farming  colonies,  in  lands  to  be 

*  Lombroso,  "1  palimsesti  del  carcere,"  Preface. 

2  Ferri,  "Lavoro  e  celle  dei  condamnati";  "Studi  suUa  criminalitA  ed  altri 
saggi";  Prius,  "Criminalite  et  repression";  Lombroso,  "Illusioni  dei  giuristi  sulle 
careen,"  A.  P.  (1886),  p.  563.  See  to  the  same  effect,  Browne,  "Commonsense 
and  Crime,"  in  the  "Fortnightly  Review"  (August,  1895). 


544  PRACTICAL  REFORMS  [§343 

reclaimed,  for  adults,  choosing  healthy  or  unhealthy  situations 
according  to  the  category  of  the  delinquent  (born,  habitual,  occa- 
sional) and  the  gravity  of  the  crime;  in  cultivated  lands  for 
minors,  under  the  form  of  farming  houses  of  correction  show  the 
ideal,  the  typical  form  of  isolation  of  convicts.^  Wherever, 
there  are  men  gathered  together,  there  will  be  human  fermenta- 
tion and  putrefaction.  Work  in  the  open  air  is  the  only  method 
in  accordance  with  the  demands  of  physical  and  moral  hygiene. 
And  if,  for  the  convicts  who  have  spent  their  lives  in  the  city, 
work  in  the  field  is  not  possible,  there  is  nothing  to  prevent  (and 
it  would  be  an  excellent  measure)  the  annexation  to  every  farming 
colony,  in  order  to  make  it  self-sufficient,  of  industrial  shops, 
where  each  prisoner  could  follow  his  trade.  As  far  as  the  city 
prisoners  without  any  trade  or  professions  are  concerned,  in  spite 
of  the  neurasthenia  which  renders  them  incapable  of  serious  and 
methodical  work,  farming  colonies  furnishing  them  labor  which 
is  not  too  severe  is  the  best  institution.  This  is  proved,  apart 
from  the  organization  of  prisons,  by  the  example  of  the  farming 
colonies  founded  in  Holland,  Belgium,  Poland,  and  Austria  for 
healthy  mendicants  and  vagabonds.  The  same  evolution  takes 
place  in  the  segregation  of  criminals  as  in  that  of  the  insane. 
First,  both  have  the  same  horribly  corrupt  life  in  common  in 
hospital  or  gaol.  Then,  life  in  some  barracks  in  the  form  of  asylum 
or  prison;  then  the  village  system  or  Scotch  open-door  system 
for  the  insane,  and  lastly,  the  free  colony,  such  as  exists  at  Ghent, 
in  Belgium,  for  harmless  insane  who  farm  and  do  a  little  industrial 
labor.2  The  same  result  will  be  attained  for  delinquents,  and 
the  barracks  will  be  superseded  by  the  outdoor  life  of  farming 
colonies,  a  much  better  method  of  social  isolation  for  an  indeter- 
minate period. 

'  This  conclusion  has  been  rq^hed  by  Jcly,  "Combat  centre  le  crime"  (Paris, 
1893),  Qiap.  xiv;  Ferrero,  "La  lotta  contro  il  furto,"  in  "Archiv.  di  psic," 
XVI,  482;  Griffiths,  "Penal  Colonies,"  in  the  "North  American  Review"  (Decem- 
ber, 1896);  Eula,  "Dal  carcere  alia  colonia  agricola"  (Milan,  1898).  Luchini 
himself  comes  to  this  conclusion,  notwithstanding  his  bitter  attacks  upon  pos- 
itivism in  the  "Rivista  penale."     His  article  on  prison  outdoor  labor. 

*  Marandon  de  Montiel,  "  L'hospitalisation  de  la  foUe  et  les  nouveaux  asiles 
ouverts  pour  les  alienes,"  in  the  "Annales"  (November,  1875,  November,  1896, 
August,  1897);  Toulouse,  "L' open-door  en  Ecosse,"  in  the  "Revue  de  pyschia- 
trie"  (September,  1900).  Farming  colonies  have  been  demanded  even  for  epilep- 
tics by  Peterson,  "American  Journal  of  Nervous  and  Mental  Disease"  (December, 
1889).  Such  colonies  have  already  been  established  at  Laforce  in  France,  and 
in  the  United  States  by  Oscar  Craig.     See  A.  M.  P.  (August,  1894),  p.  170. 


§§  344,  345]  PRACTICAL  REFORMS  545 

§  344.  Classification  of  Habittial  Criminals. 

The  anthropological  character  of  habitual  criminals  is  sufficient 
to  warn  us  that  the  two  phases  of  this  criminal  activity  and  the 
means  suited  to  its  repression  must  be  distinguished.  In  other 
words,  the  moment  when  they  commit  their  first  crime  must  be 
distinguished  from  the  period  when  they  have  become  habitual 
and  even  incorrigible.  It  is  evident  that  in  the  first  of  the  two 
phases  they  must  be  considered  as  occasional  deUnquents,  while 
in  the  second,  they  must  be  treated  with  the  same  measures  as 
born-criminals.  The  difference  is  that  the  deUnquents  by  ac- 
quired habit  generally  commit  less  serious  offenses  than  born- 
criminals.  In  estabUshments  for  incorrigibles  the  discipline  and 
term  should  be  made  to  fit  the  class.  Above  all,  while  one  grave 
crime  is  sufficient  to  remove  a  born-criminal  from  society,  a 
greater  or  less  number  of  relapses,  according  to  the  kind  of  crime 
and  surrounding  circumstances,  are  necessary  before  an  habitual 
criminals  can  be  ranked  among  the  incorrigibles. 

§  346.   Occasional  Criminals  and  the  Abuse  of  Short-Term  Sentences. 

As  far  as  occasional  criminals  are  concerned,  measures  for  social 
protection  should  be  preventative  rather  than  repressive.  That  is 
to  say,  care  should  be  taken  that  no  error  should  put  this  occasional 
criminal  into  recidivity  and  incorrigibility.  In  this  class,  particu- 
larly, a  distinction  must  be  made  between  minors  and  adults. 
For  the  former,  more  than  for  the  latter,  the  preventative  quality 
of  social  sanction  can  produce  sensible  effects  on  the  diminution 
of  criminality,  provided  that  physio-psychical  study  and  cure  of 
the  criminal  minor  or  candidate  for  crime  supercedes  the 
complicated  graduations  of  responsibility,  which,  in  the  case  of 
minors,  so  embarrass  the  codes  and  make  the  precocity  of  the 
delinquent  an  abstract  reason  for  relative  or  absolute  irresponsi- 
bility,^ in  place  of  considering  it  as  a  dangerous  symptom  of 
congenital  degeneracy.^  Beginning  with  moral  and  physical 
care  of  abandoned  infancy,  which  is  one  of  the  most  efficacious 
substitutes  for  punishment,   and  then  proceeding  to  obligatory 

*  This  logical  conclusion  is  reached  by  Bozi,  "Bekampfung  von  Gewohnheits- 
verbrechen"  (Berlin,  1895),  that  "habit  which  weakens  the  will,  must  lessen  the 
responsibility  of  the  habitual  criminal." 

*  For  an  example  of  the  fetishism  of  punishment,  see  Joly,  "  Des  delits  commis 
k  I'fige  scolaire,"  in  the  "Revue  penitentiaire"  (1894),  p.  885,  where  he  proposes 
a  school  jurisdiction  to  punish  scholars  who  commit  a  first  offense. 


546  PRACTICAL  REFORMS  [§  346 

correction  and  actual  punishment  for  young  criminals,  we  find  a 
whole  system  to  be  radically  reformed,  and  one  from  which  im- 
prisonment must  be  excluded.  It  can  only  be  a  question  of 
isolating  minor  deUnquents  (or  at  least  the  less  abnormal)  in 
honest  families,  and,  above  all,  placing  them  in  farming  colonies 
where  they  would  naturally  be  subjected  to  a  discipline  diflFerent 
from  that  of  the  adidt  penal  farming  colonies,  but  where  isolation 
by  night  and  daily  work  in  the  open  air  would  be  obligatory. 
They  would  be  placed  there  for  indeterminate  periods.  Large 
establishments  should  be  avoided.^  In  regard  to  adult  occasional 
deUnquents,  it  would  be  superfluous  to  insist  upon  the  absurdity 
and  danger  of  short-term  sentences,  with  or  without  cellular 
isolation,  although  this  is  almost  the  exclusive  form  of  detention 
to-day.  A  few  days  in  gaol  —  generally  spent  in  the  company  of 
habitual  delinquents  —  can  have  no  intimidatory  effect,  especially 
with  a  ridiculous  minimum  of  one  or  two  days,  such  as  is  allowed 
by  the  Dutch  and  Italian  codes.  They  have,  on  the  contrary, 
disastrous  effects,  depriving  justice  of  any  serious  quahty,  destroy- 
ing all  fear  of  punishment,  and  forcing  first  offenders  into  recidivity 
by  the  dishonor  with  which  they  are  tainted  and  by  the  corrupting 
contact  with  habitual  criminals,  the  effect  of  the  gaol.  The 
effects  are  so  undeniable  that  the  plebiscite  and  crusade  against 
short-term  sentences  can  be  said  to  be  unanimous.  And  yet 
the  wisdom  of  the  Itahan  law-makers,  in  the  amending  of  the 
code,  has  taken  no  accoimt  of  the  fact  that  several  years  experi- 
ence on  the  part  of  all  nations  had  proved  how  absurd  and  danger- 
ous such  punishments  are. 

§346.  Substitutes  for  Short-Term  Sentences. 

This  brings  us  to  the  problem  of  the  substitution  of  other 
repressive  means  for  the  immense  number  of  imprisonments 
inflicted  for  slight  crimes.  Students  and  legislators  have  tried 
hard  to  find  them;  detention  at  home,  bond,  judicial  admonition, 
forced  labor  without  imprisonment,  conditional  suspension  of 
sentence  and  punishment,  local  exile.  Among  all  these  substi- 
tutes there  is  one  which  is  enthusiastically  received  to-day,  "con- 
ditional  sentence,"   or   the  suspension  of   sentence.^     I   do  not 

*  I  defended  these  ideas  before  the  "  Societe  des  prisons  de  Paris,"  at  the  session 
to  which  I  was  invited.  See  "Revue  penitentiaire"  (February,  1900),  and  S.  P. 
(January,  1900). 

*  See  among  others,    BorUlmre,    "Peines    qui  pourraient,   dans    certains  cas. 


§  347]  PRACTICAL  REFORMS  547 

believe  that  any  of  these  substitutive  measures  can  be  really 
efficacious  or  as  generally  applicable  as  required  by  the  innumer- 
able classes  of  the  deUnquent  authors  of  petty  crime.  Recog- 
nizance or  guarantee  "de  bene  vivendo"  is  too  unequal  for  the 
poor  and  rich.  It  is  too  rarely  applicable  to  most  convicts  in 
practice  to  be  anything  but  an  exceptional  and  accessory  measure 
in  addition  to  reparation  in  damages.  It  has  disadvantages 
even  when  in  the  form  of  a  bond  by  a  third  party.  Judicial  ad- 
monition (with  or  without  bond),  which  the  new  ItaUan  penal 
code^  would  revive  despite  the  experience  under  old  statutes 
and  despite  the  audacious  innovation  of  calling  it  "judicial  repri- 
mand" in  place  of  admonition  (to  distinguish  it  from  the  objec- 
tionable and  useless  pohce  admonition),  cannot  be  seriously 
considered.  Either  the  condemned  is  in  fact  an  occasional 
delinquerit,  sensible  to  the  call  of  honor,  then  criminal  sentence 
would  give  him  a  lesson  without  need  for  the  judge  to  read  him 
a  homily  or  a  sermon;  or  else  moral  sensibility  is  lacking  in  the 
condemned,  and  then  this  reprimand  is  lost  and  can  have  no 
effect  on  the  prisoner  or  the  public.  This  is  so  patently  true  that 
it  has  fallen  into  disuse.  Forced  labor  without  imprisonment 
can  be  admitted,  not  as  a  penalty  "per  se,"  but  as  a  means  of 
obtaining  the  full  reparation  in  damages,  which  is  the  only  sanc- 
tion to  be  applied  to  occasional  delinquents,  guilty  of  petty 
crimes.  Local  exile  (or  banishment  from  the  scene  of  past  crime) 
can  be  added  as  a  measure  of  prevention  and  as  a  satisfaction  to 
the  victims  in  many  cases  where  the  punishment  consists  in 
reparation  in  damages.^ 

§  347.   Substitutes  for  Short-Term  Sentences :    Conditional  Sentence. 

To-day  the  conditional  sentence  has  a  hterature  of  its  own. 
Its  provisions  may  be  briefly  outlined.  In  cases  of  petty  crime, 
if  the  defendant  is  not  a  recidivist  and  appears  to  deserve  the 
benefit  of  this  law,  the  judge  can  suspend  sentence  or  its  execution 
for  a  definite  period;  and  if  this  time  elapses  without  the  deUn- 
quent being  guilty  of  bad  conduct  or  committing  a  new  crime,  the 

etre  substituees  k  remprisonnement,"  in  the  "Revue  p^nitentisure"  (June,  189S 
et  seq.). 

1  Articles  26,  27. 

*  For  the  complete  failure  of  the  equivalents  of  punishment  in  the  new  Italian 
code,  see  Costa,  in  the  "Atti  di  commissione  statistica  giudiziaria"  (Rome,  1895), 
pp.  436  et  seq.  See  also  Rispoli,  "Funzione  dei  surrogati  e  instituti  aflBni"  in  the 
"Rivista  penale"  (October,  1897). 


548  PRACTICAL  REFORMS  [§  347 

judgment  is  discharged;  in  the  contrary  event,  the  sentence  is 
executed  or  the  penalty  exacted,  together  with  that  of  the  second 
crime.  This  conditional  suspension  has  developed  in  two  main 
forms,  widely  different.  In  Boston,  from  1870  for  minors,  and 
from  1878  for  adults,  and  from  1880  throughout  Massachusetts, 
judgment  is  suspended  even  without  regard  to  the  nature  of  the 
crime  and  the  history  of  the  delinquent;  the  judge  merely  fixes 
the  probation  period  from  two  to  twelve  months.  There  is  a 
probation  oJEcer,  whose  duty  it  is  to  watch  those  freed  on  pro- 
bation, with  extensive  powers,  including  that  of  bringing  them 
before  the  Court,  for  bad  conduct,  and  demanding  sentence, 
without  there  having  been  any  recidivity  in  a  true  sense.  This 
system  has  been  introduced  into  New  Zealand  and  AustraUa  by 
the  Act  of  6  October,  1886,  with  the  following  preamble:  "There 
are  reasons  to  beheve  that  certain  delinquents  would  be  able  to 
reform  if,  in  place  of  imprisoning  them  after  the  perpetration  of 
the  first  crime,  they  were  given  means  of  better  behaviour."  In 
England  the  Act  of  8  August,  1887,  "the  probation  of  first 
offenders"  united  the  probation  system  with  that  of  bonding  to 
keep  the  peace.  The  verdict  is  recorded  but  no  sentence  pro- 
nounced. The  benefit  of  the  suspension  of  sentence  is  refused  to 
every  recidivist  and  to  every  one  guilty  of  a  crime  punishable  by 
an  imprisonment  of  more  than  two  years.  There  is  no  probation 
oflficer  because  of  the  recognizance  or  bond.^  On  the  Continent, 
a  different  form  has  been  adopted;  there  is  no  surveillance  exer- 
cised by  a  special  officer  and  no  guarantee  of  good  conduct  — 
judgment  is  given  and  even  the  sentence  is  pronounced,  and  the 
benefit  of  the  suspension  is  not  lost  by  bad  conduct  but  only  by 
actual  recidivity.  Such  (apart  from  divers  conditions  on  the 
limit  of  punishment,  permitting  a  conditional  sentence  on  the 
term  given  for  relapse,  and  on  other  details)  is  the  system  pro- 
posed first  in  France  in  1884,  by  Berenger,  but  first  applied  in 
Belgium  by  the  Act  of  31  May,  1888,  "On  conditional  liberation 
and  conditional  sentences,"  ^  later  in  France  by  the  Act  of  26 
May,  1891,  "On  the  decrease  and  increase  of  punishment,"  in 

^  The  investigation  of  the  Howard  Association  resulted  in  the  institution  of 
probation  officers  in  England. 

*  Le  Jeune  in  Belgium  proposed  conditional  sentence  even  for  military  of- 
fenses, "Revue  penitentiaire"  (1896),  p.  172,  and  as  long  as  standing  armies 
continue  to  exist,  I  think  it  would  be  most  useful  in  that  sphere,  both  because  the 
offense  is  generally  a  breach  of  discipline,  and  because  of  the  personal  knowledge 
of  the  offenders. 


§347]  PRACTICAL  REFORMS  549 

Portugal  by  the  Act  of  6  July,  1893,  on  conditional  liberation  and 
sentence,  and  subsequently  in  Luxembourg,  Geneva,  and  Norway. 
In  the  Penitentiary  Congress  at  London  (1872)  and  at  Rome 
(1885)  there  was  a  discussion,  followed  by  no  resolution,  as  to 
whether  it  would  be  wise  to  substitute  for  gaol  sentence  for  petty 
crimes,  either  simple  detention  without  labor,i  obligatory  labor 
without  imprisonment,  local  exile,  or  judicial  admonition.^  It 
was  the  "Union  Internationale  du  droit  penal,"  which,  next  to 
the  "Howard  Association,"  in  1881,  made  the  greatest  demand 
for  conditional  sentence.  It  insisted,  however,  in  accordance 
with  the  observations  of  Garofalo,  "on  the  necessity  of  determin- 
ing the  limits  according  to  the  local  conditions  and  the  sentiment 
and  moral  state  of  different  peoples."  Thus,  at  St.  Petersburg 
in  1890,  the  Penitentiary  Congress  discussed  the  replacing  of 
short-term  sentences  by  judicial  admonitions  or  conditional 
sentences,  but  no  resolution  was  reached  and  the  question  was 
referred  to  the  next  meeting  in  Paris  in  1895. 

There  have  also  been  many  proposals  for  conditional  sentences 
in  Italy,  Austria,  and  Germany,  while  Prussia,  Saxony,  and  Ba- 
varia have  already  applied  it  administratively.  The  data  furnished 
by  these  applications,  cannot,  because  of  the  short  duration  of  the 
experiment  so  far,  lead  to  instructive  conclusions.  As  to  Boston, 
where  the  statistics  run  from  1879,  because  conditional  sentence  was 
largely  applied  to  drunkards,  who  are  not  true  delinquents,  the 
figures  for  recidivists  for  the  year  1889  of  sixty-four  in  eleven  hun- 
dred and  twenty-five,  or  six  per  cent.,  deserve  no  confidence.' 
Every  time  that  a  new  prison  system  or  a  new  combination  of 
systems  has  been  tried,  more  or  less  marvellous  returns  have  been 
shown,  but  soon,  by  a  kind  of  fatality,  they  have  diminished  until 
different  conclusions  are  reached  and  the  need  of  a  new  combina- 
tion shown.  This  is  and  always  will  be  that  the  legislative  judges 
and  guardians  are  equally  ignorant  of  criminal  man,  and  that  the 
actions  of  the  latter  are  completely  foreign  to  the  former.  Hence 
the  more  or  less  superfluous  character  of  the  measures  taken, 

»  A.  C.  A.  C.  (London),  p.  408.  *  A.  C.  A.  C.  (Rome),  I,  179,  258,  660. 

*  "Probation  work  in  the  County  of  Suffolk  for  the  year  ending  31st  December, 
1889"  (Boston,  1889).  The  same  can  be  said  of  France,  see  "Journal  de  la  So- 
ciete  de  statistique"  (February,  1875).  In  1893  twenty  thousand  four  hundred 
and  four  out  of  one  hundred  and  sixty  thousand  and  fifteen,  or  twelve  per  cent, 
of  the  sentences,  were  conditional.  In  England,  in  1896,  eight  thousand  eight 
hundred  and  seventy-three  out  of  thirty-nine  thousand  seven  hundred  and  thirty- 
seven  sentences  were  conditional.     Bodio,  R.  C.  (August,  1898). 


550  PRACTICAL  REFORMS  [§347 

always  with  regard  to  the  crime  and  not  the  criminal,  and,  there- 
fore, always  without  touching  the  roots  of  criminaUty.  Hence, 
too,  the  inevitable  disillusion  brought  by  reahty  after  its  first 
trial.  Far  from  admitting  the  principal  objections  of  Kirchen- 
heim  and  Wach,  I  do  not  agree  with  them  that  the  conditional 
sentence  violates  the  principle  of  absolute  justice,  which  requires 
every  crime  to  entail  the  same  penalty,  or  that  the  alleged  failure 
of  short-term  sentences  is  no  reason  for  aboUshing  them,  but  only 
for  applying  them   more  accurately   and  efficiently. 

The  first  objection  has  no  influence  over  a  follower  of  the 
method  and  principle  of  the  positive  school,  and  it  is  useless,  as 
Gautier  said,  to  discuss  the  consequences  when  the  premises  are  as 
opposed  as  these  are  to  the  principles  of  distributive  justice  and 
social  reparation.  All  that  this  objection  proves  is  that  condi- 
tional condemnation  is  a  forced  concession  by  classical  doctrinism 
to  heterodox  positivism.  The  second  seems  no  better  founded, 
for  the  failure  of  short-time  sentences  is  organic,  and  therefore 
inevitable.  There  is  no  question  of  their  more  or  less  effective 
practical  execution;  such  changes  could  have  only  a  very  second- 
ary influence.  It  is  the  short-term  sentence  itself  which  is  a  failure 
and  useless.  Putting  aside,  however,  the  other  objections  as  to 
detail  which  are  advanced  against  the  form  given  to  the  condi- 
tional sentence  on  the  continent  of  Europe  in  comparison  with 
the  American  system  (which  is  certainly  preferable  because  it 
does  not  abandon  the  condemned  and  is  not  restricted  to  legal 
recidivity),  I  am  not  an  enthusiastic  champion  of  it,  at  least 
while  penal  justice  follows  present  reform  methods  in  a  more  or 
less  superficial  manner. 

It  cannot  be  sustained,  in  spite  of  its  very  favorable  first 
impression,  and  this  is  true  for  reasons  different  from  those 
which  have  been  advanced  until  the  present  time  by  its  adver- 
saries. In  the  first  edition  of  this  book  it  was  held  that 
repression  should  be  mild  for  occasional  delinquents  and  ex- 
pressly severe  for  recidivists,  approaching  segregation  for  a 
determinate  period.  The  popular  ItaUan  proverb,  "For  the 
first  offense  a  pardon;  for  the  second  a  whip,"  is  only  an  uncon- 
scious confirmation  of  this  observation.  This  is  why  at  the  first 
glance  conditional  sentence,  particularly  if  there  is  added  to  it, 
as  under  the  French  law,  successive  increase  of  punishment  for 
recidivists,  presents  a  seductive  aspect.  But  if  studied  with 
attention,  it  has  two  organic  faults  which  are  inherent  in  the 


§  347]  PRACTICAL  REFORMS  551 

present  penal  system  and  which  the  champions  of  conditional 
sentences,  being  generally  undecided  between  the  classical  and 
the  positivist  theories,  naturally  do  not  correct.  The  first  is, 
that  the  classical  school,  considering  the  crime  and  the  positive 
school  demanding  that  the  delmquent  be  considered,  especially 
in  regard  to  the  anthropological  category  to  which  he  belongs, 
leaves  the  champions  of  this  kind  of  punishment  (in  its  present 
form)  between  the  two  schools  regarding  the  delinquent  more 
than  the  crime,  but  making  him  an  abstract  and  mean  type,  and 
not  a  living,  palpitating  human  bemg  such  as  he  is  in  a  cUflPerent 
anthropological  category.  To  prove  this  it  is  only  necessary  to 
recall  that  Article  IX  of  the  Belgian  Law  governs  conditional 
punishment  according  to  the  nature  of  the  penalty,  allowing  it, 
if  the  latter  does  not  exceed  six  months,  even  when  it  is  the  ac- 
cumulation of  several  penalties.  This  means  that  conditional 
punishment  is  allowed  in  the  case  of  many  crimes  whose  author 
is  in  fact  a  recidivist  and  not,  save  in  very  rare  cases,  a  true  occa- 
sional delinquent.  The  two  fundamental  conditions  for  condi- 
tional sentence  in  Europe  (a  petty  crime  and  a  non-recidivistic 
delinquent)  are  not  an  absolute  guarantee  of  its  correct  applica- 
tion, although  the  personal  character  of  the  delinquent  is  indirectly 
before  the  judge  in  order  that  he  may  determine  according  to 
circumstances  independent  of  legal  conditions,  whether  it  is  well 
or  not  to  give  a  conditional  character  to  his  sentence.  We  know 
besides  this  that  the  packing  of  courts  of  correction  and  police 
stations  with  accused  men  is  a  sorrowful  answer  to  the  filling  of 
prisons  with  guilty  men  condemned  to  short-term  sentences. 

The  inevitable  result  will  be  that  judges,  if  only  controlled  by 
this  numerical  reason,  will  end  by  forming  a  habit  of  almost  me- 
chanically giving  a  conditional  sentence,  as  they  have  been  led  al- 
ready to  allow  extenuating  circumstances  to  influence  their  sentence 
when  they  were  introduced  in  France  in  1832  in  order  to  permit 
an  individualization  of  punishment,  that  is  to  say,  to  recall  to 
the  judge  the  fact  that  he  should  suit  the  sentence  to  the  delin- 
quent and  not  to  the  crime.  Until  penal  procedure  is  radically 
reformed  in  the  manner  in  which  positivism  demands  it,  so  that 
the  collection,  discussion,  and  analysis  of  the  evidence  (the  only 
elements  from  which  a  penal  judgment  should  be  formed)  serve 
only  to  determine  the  anthropological  category,  that  is  the  physio- 
psychical  qualities  of  the  delinquent,  it  will  be  humanly  impossi- 
ble for  the  practical  appUcations  of  judicial  machinery  to  succeed 


552  PRACTICAL  REFORMS  [§347 

while  it  mechanically  and  impersonally  applies  punishment  to 
crime  and  not  to  men.  It  is  so  patent  that  it  is  already  recognized 
in  Belgium,  for  example,  that  a  conditional  sentence,  influenced 
by  the  habits  of  thought  of  the  judiciary,  often  only  represents 
an  act  of  conscience  on  the  part  of  the  judge,  who,  during  trial 
on  evidence,  does  not  subject  the  testimony  to  very  scrupulous 
criticism,  but,  by  way  of  compensation,  gives  a  conditional  sen- 
tence. Thus,  conditional  sentence,  arising  as  it  does  from  the 
abuse  and  disastrous  effects  of  short-term  sentences,  and  based, 
as  it  is  on  the  maxim  "for  the  first  time  a  pardon,  for  the  second 
the  whip,"  is  but  an  eclectic  compromise  grafted  on  the  old  trunk 
of  penal  law  and  procedure.  Consequently,  despite  its  seductive 
appearance,  it  seems  destined,  when  the  glamour  of  its  first  trial 
is  passed,  to  fail  practically  to  give  all  the  good  results,  which  its 
champions  have  promised  in  its  name,  although  it  marks,  as  we 
cannot  fail  to  see,  a  step  towards  the  positive  system  of  social 
protection  based  on  fitting  the  defense  to  the  offensive  power  of  the 
delinquent.  Conditional  sentence,  for  the  very  reason  that  it 
is  grafted  on  the  old  classical  trunk,  has  another  very  serious 
fault;  —  it  forgets  the  victims  of  crime,  for  its  champions  continue 
to  consider  reparation  in  damages  as  a  purely  private  interest 
whose  rigorous  application  is  recommended  as  a  principle,  but 
which  is  practically  left  in  complete  oblivion.  It  can  be  said 
that  from  this  point  of  view  conditional  sentence  is  the  reverse  of 
a  progress  from  the  present  state,  for  the  victim  has  not  in  the 
case  of  assault  or  robbery  the  satisfaction  of  seeing  his  offender 
undergo  punishment;  and  although  it  has  been  held  by  Flayer 
and  others  that  punishment,  even  conditional,  is  still  a  punish- 
ment and  that  it  impUes  the  disapproval  of  public  authority 
that  recidivity  is  threatened,  and  that  in  every  case  it  hangs  over 
the  head  of  the  condemned  until  the  expiration  of  his  term.^ 
This  is  not  true.  These  statements  are  all  very  well  save  in  respect 
to  recidivity,  which  supposes  a  repetition  which  can  be  but  a 
sUght  solution  of  the  crime  by  him  who  has  been  conditionally 
sentenced;  and  this  can  give  very  Uttle  satisfaction  to  the  victims 
of  the  first  crime. 

But  these  statements  are  theoretical  and  impractical.  \Miat 
actually  remains  in  the  mind  of  the  victim  is  that  the  cause 
of  his  damage  is  unpunished.    This,  of  course,  is  true,  but  the 

'  Fayer  cited  by  Worms,  in  the  "Bulletin  de  la  societe  des  prisons  de  Paris'* 
(1901),  p.  380. 


§  348]  PRACTICAL  REFORMS  553 

honest  people  who  have  suffered  by  their  act  deserve  still 
more  regard.  I  believe,  therefore  (disagreeing  with  Garofalo's 
proposal  at  the  meeting  at  Brussels  that  a  conditional  sentence 
must  only  be  imposed  with  the  consent  of  the  victim  ^),  that  it 
should  be  granted  only  when  a  reparation  in  damages  has  been 
effected  or  guaranteed  by  the  deUnquent,  either  directly  to  his 
victim  or  to  the  State  if  it  has  indemnified  the  victim  for  the  crimes 
according  to  our  system.  Finally,  I  beHeve  that  for  occasional 
delinquents  who  commit  petty  crimes  under  circumstances  that 
show  that  they  are  not  dangerous,  as  I  have  already  said, 
reparation  in  damages  is  sufficient.  In  case  of  occasional  delin- 
quents who  have  committed  serious  crimes  for  which  reparation 
in  damages  is  not  sufficient  punishment,  there  should  be  added 
in  cases  of  intermediate  gravity  a  temporary  local  exUe,  and  in 
the  gravest  cases  isolation  for  an  indeterminate  time  in  a  farming 
colony  with  work,  discipline,  and  general  conditions  less  rigorous 
than  those  established  in  farming  colonies  destined  for  born 
deUnquents  and  recidivists. 

§  348.  Delinquents  through  Passion:   Their  Relative  Impunity. 

In  the  last  place,  there  remains  the  category  of  those  who 
have  committed  some  guilty  act  in  a  transport  of  passion.  It  is 
evident  that  no  punishment  can  be  exercised  upon  individuals 
of  this  kind  which  will  create  an  impulsion  against  the  crime, 
since  the  very  circumstances  in  which  it  is  committed  make  any 
efficacious  legislative  menace  impossible.  I  believe,  therefore, 
that  in  the  typical  cases  of  delinquents  of  this  kind  when  they 
present  a  psychopathic  form  which  marks  them  for  inmates  of 
the  criminal  insane  asylum,  ordinary  jail  sentences  are  ineffec- 
tive, and  that  they  should  be  condemned  to  a  rigorous  reparation 
in  damages  caused  to  their  victims.  This  wiU  suffice  for  their 
punishment,  even  when  their  sincere  and  deep  remorse  does  not 
punish  them  sufficiently.  A  local  exile  for  an  indeterminate 
period  can  be  added,  which  will  remove  them  from  the  place 
where  the  crime  has  been  committed  or  the  residence  of  the 
family  of  the  victim.  Naturally,  it  must  be  kept  in  mind  that  we 
are  speaking  here  of  delinquents  whose  transport  of  passion  is 
typical  and  who  present  the  special  characteristics  of  that  type. 
The  case  is  different  in  dealing  with  delinquents  who  have  been 
simply  provoked  and  who  want  the  characteristics  of  this  class, 
1  B.  U.  I.  D.  P.  (1899),  I,  149. 


554  PRACTICAL  REFORMS  [§  349 

for  example,  those  who  commit  homicide  through  anger  or  tem- 
peramental lack  of  balance.^  Such  individuals  belong  really 
to  the  category  of  occasional  delinquents,  and  should  be  so 
treated.^ 

§  349.   Summary  of  Practical  Reform. 

We  have  thus  sketched  the  general  criteria  of  the  practical 
system  of  preventive  and  repressive  social  protection  against  the 
different  categories  of  delinquents  in  accordance  with  the  posi- 
tive inductions  of  the  scientific  study  of  crime  considered  as  a 
natural  and  social  phenomenon.'  This  defensive  system  must 
necessarily,  in  the  natural  course  of  events,  be  substituted  for 
the  classical  criminal  and  penitentiary  systems,  as  soon  as,  on  one 
hand,  crime  is  considered  as  a  symptom  of  individual  and  social 
pathology,  and  not  as  the  action  of  a  free  and  evil  will,  and,  on 
the  other  hand,  as  soon  as  daily  experience  shows  by  results 
that  the  conviction  (already  more  or  less  accepted,  but  which  will 
become  general)  that  the  present  systems  in  regard  to  their  theo- 
retical doctrinarism  and  more  and  more  disastrous  practical 
effects,  are  incompatible  with  the  necessities  of  social  life. 

^  Bonanno,  "D  deliquente  per  passione";  Puglia,  "Intomo  ai  delinquenti 
per  passione,"  R.  C.  (May,  1897). 

*  In  the  case  of  political  delinquents,  those  who,  apart  from  holding  heterodox 
opinions,  may  because  of  their  beliefs  commit  some  actual  offense,  the  punish- 
ment for  the  anthropological  category  to  which  they  belong  must  be  applied. 
But  it  mtist  be  kept  in  mind  that  the  special  character  of  their  personality  (gen- 
erally normal)  and  of  their  specific  criminality  (evolutive)  requires  them  to  be 
given  much  freedom.  They  need  only  be  exiled  or  imprisoned  for  some  period, 
and  need  not  be  disciplined  as  ordinary  and  atavic  delinquents.  See  Lombroso 
and  Laschi,  *'L  delitto  poUtico,"  P.  II,  Cap.  II. 

*  It  is  noteworthy  that  Tolstoi  in  "Resurrection"  (P.  11),  while  unjustly 
reproaching  the  positive  school  with  neither  asking  nor  solving  the  question  of  the 
right  of  punishment,  pwychologically  classifies  prisoners  almost  as  it  does.  He 
gives  five  classes;  I,  victims  of  judicial  mistakes;  II,  delinquent  because  of  a 
state  of  abnormal  irritation,  dnmkenness,  jealousy,  etc.;  Ill,  authors  of  "Mala 
prohibita";  IV,  delinquents  of  a  more  than  average  morality  (evolutive  delin- 
quency); V,  habitual  delinquents,  among  whom  certain  "tj'pes  of  delinquents 
who,  according  to  the  Italian  school,  pay  the  hereditary  debt  of  their  ancestors." 


CHAPTER  Vn 

CONCLUSION 

The  future  of  penal  science  and  practice.  Relation  between  penal  law  and 
criminal  sociology  and  criminal  sociology  and  politics.  Value  of  origin 
of  crime  as  a  basis  of  criminology.  Ultimate  significance  of  new  discov- 
eries and  methods.  Penal  procedures  in  the  future.  Penal  science  in  the 
future. 

§  350.  The  Future  of  Penal  Science  and  Practice. 

Turning  our  attention  to  the  general  conditions  of  modern 
scientific  thought  which  has  led  us  to  apply  a  new  method  to  the 
study  of  crime  and  punishment  (thus  giving  rise  to  the  new  science 
of  criminal  anthropology),  and  recalling  particularly  the  essential 
results  of  criminal  anthropology  and  statistics,  one  definitive 
conclusion  is  inevitable:  Henceforth,  criminal  science,  while 
remaining  a  juridical  science  in  its  results  must  nevertheless  in 
its  basis  and  its  means  of  research  become  a  branch  of  sociology. 
Consequently  a  preliminary  study  of  anthropology  and  statistics 
as  far  as  these  sciences  study  criminal  men  and  his  anti-social 
activity  is  a  prerequisite  for  it.  The  study  of  social  phenomena, 
that  is  to  say,  of  human  activity  in  the  social  organism,  constitutes 
the  science  of  general  sociology.  This  was  the  great  lesson  taught 
by  August  Comte.  It  has  since  been  divided  into  a  number  of 
particular  branches,  following  the  special  order  of  social  phenom- 
ena to  be  studied.  The  struggle  for  existence  can  be  borne  by  every 
man  of  normal  activity.  In  other  words,  it  can  be  made  coordi- 
nate to  the  conditions  of  existence  of  other  individuals  and  of 
society  as  a  whole,  or  else  subjected  to  the  disturbing  action  of  the 
natural  factors  already  pointed  out.  It  can  be  carried  on  through 
an  abnormal  activity,  that  is  to  say,  contrary  to  the  conditions  of 
individuo-social  existence. 

This  shows  why  particular  sociologies  develop  in  two  distinct 
but  not  separate  directions  (because  both  begin  with  general 
sociology),  some  studying  normal  human  activity,  social  or 
juridical;  others  studying  anti-social  or  anti- juridical  human 
activity.     Thus,  as  in  the  organic  order  with  the  common  basis 

555 


556  PRACTICAL  REFORMS  [§  351 

of  general  biology  (the  science  of  individual  life),  physiology, 
and  pathology  are  distinguishable  as  special  studies  of  nor- 
mal and  abnormal  vital  phenomena;  so  in  the  super-organic 
order  (as  Spencer  said,  perhaps  inexactly)  on  the  common  basis 
of  general  sociology  (the  science  of  social  life)  economic,  juridical 
and  political  on  one  hand,  and  criminal  sociology  on  the  other, 
can  be  distinguished  for  the  special  study  of  normal  and  abnormal 
social  phenomena.  This  explains  why  it  was  said  in  the  Introduc- 
tion to  this  book  that  the  innovation  instituted  by  the  positive 
criminal  school  is  not  confined  to  a  simple  alUance  of  criminal 
and  penal  law  with  criminal  anthropology  and  statistics,  but  that 
it  is  in  reality  a  radical  reform  in  scientific  method  and  organism 
which  takes  place  in  the  new  science  of  criminal  anthropology  which 
is  made  up  of  criminal  anthropology  (by  the  study  of  organic  and 
psychic  facts)  and  statistics  on  one  hand,  and,  on  the  other,  by 
criminal  and  penal  law,  which  are  only  special  chapters  on  it. 
These  ideas,  however,^  which  have  been  approved  by  the  greater 
number  of  positivists  have  met  ordinary  eclectic  reserves  and  re- 
strictions, not  only,  as  was  natural,  at  the  hands  of  classical 
criminologists,  but  also  at  the  hands  of  certain  men  who,  however, 
sympathize  with  and  accept  the  theoretical  and  practical  conclu- 
sions of  the  positive  school.  It  is  necessary,  therefore,  to  say  a 
few  words  on  the  relations  between  penal  law  and  criminal  so- 
ciology on  one  hand,  and  criminal  sociology  and  poUtics  on  the 
other. 

§  361.  Relations  between  Penal  Law  and  Criminal  Sociology,  and 
Criminal  Sociology  and  Politics. 

Puglia,  a  determined  follower  of  the  positivist  school,  began 
by  declaring  his  belief  that  "criminal  science,  even  with  the  aid 
of  the  natural  and  social  sciences,  is,  of  course,  sociological,  Uke 
all  juridical  sciences,"  and  that  it  maintains  unaltered  its  nature 
of  a  purely  juridical  science.^  He  adds  that  criminal  anthro- 
pology, criminal  sociology,  penology,  the  science  of  preventive 
law,  and  criminal  statistics  should  all,  within  their  own  spheres, 
deal  exclusively   and   separately   with   their  respective  objects.' 

*  Ferri,  "H  diritto  di  punire  come  funzione  sociale";  "La  scuola  positiva  di 
diritto  criminale"  (Sienna,  1883),  p.  31;  "Socialismo  e  criminalitA,"  pp.  16,  40, 
42,  43.  *  Puglia,  "II  diritto  di  repressione"  (1882),  p.  25. 

'  Puglia,  "Risorgimento  ed  avvenire  della  scienza  criminale,"  p.  52.  Puglia 
in  the  "Autonomia  della  scienza  del  diritto  penale,"  but  in  reply  to  the  criticism 
in  my  third  edition  he  advanced  no  new  argument. 


§351]  CONCLUSION  557 

Without  taking  up  the  incompleteness  of  saying  that  it  is  only  a 
question  of  the  natural  and  social  sciences  lending  their  aid,  and 
not  renewing  it  by  a  scientific  method,  and  without  speaking  of 
the  immutability  which  Puglia  would  oppose  to  all  sciences  as 
well  as  to  all  forms  of  life,  this  cellular  system,  which  he  would 
apply  to  the  different  groups  of  studies,  which  give  information 
as  to  the  genesis  of  crime  and  furnish  conclusions  for  defense 
against  it,  is  not  only  inexact  in  its  isolated  division  but  is  discred- 
ited by  the  impossibility  of  working  it.  For  the  study  of  punish- 
ment, as  a  means  of  repression,  would  be  docketed  by  Puglia 
under  criminal  sociology,  penology,  and  repressive  law,  while 
crime  favors  the  object  of  criminal  anthropology,  sociology,  and 
the  science  of  repressive  law.  This  means  that  the  effort  to  sepa- 
rate one  study  from  another  has  failed  and  that  there  are  con- 
tinual points  of  contact  between  them  —  a  proof  that  they  link 
different  parts  of  the  same  science  as  different  organs  of  a  complete 
organism,  which  can  be  distinguished  but  not  isolated.  Criminal 
anthropology  and  statistics,  like  criminal  and  penal  law,  are 
only  different  chapters  of  a  single  science,  which  is  the  study  of 
crime  (considered  as  a  natural  and  social,  and,  hence,  juridical 
phenomenon)  and  of  the  most  efficacious  means  for  preventive 
and  repressive  defense  of  society.^  But,  many  Italians  have 
adopted  Puglia's  theory,  and  in  other  countries  it  has  been  ad- 
vocated by  Gretever,  Liszt,  Garraud,  Serejewski,  Gauckler,  and 
Meinrick,^  among  others.  They  hold  that  penal  law  studies 
crime  and  punishment  as  "Juridical  phenomena"  (while  so- 
ciology studies  them  as  "social  phenomena")  with  a  triple  object 
—  to  describe  delinquency  in  the  past  and  present —  to  deter- 
mine its  individual  physical  and  social  factors —  to  indicate  the 
means  to  combat  it.    As  can  be  seen  at  a  glance,  the  old  concept 

*  Thus,  Dorado,  "La  sociologie  et  le  droit  penal,"  A.  I.  I.  S.  (1895),  I,  305  et 
8eq. 

*  Gretener,  "Ueber  die  italienische  positive  Schule  des  Strafrechts,"  in  the 
"Zeitschrift  des  Bemischen  Juristenvereins"  (1885),  XX,  I;  Liszt,  "Lehrbuch 
des  deutschen  Strafrechts,"  2d  ed.;  "De  la  repartition  geographique  des 
crimes  dans  I'Empire  allemand,"  A.  A.  C.  (March,  1886);  Garraud,  "Rapports 
du  droit  penal  et  la  sociologie  criminelle,"  id.  (1886),  Vol.  I;  Sergejewski, 
"Das  Verbrechen  and  die  Strafen  als  Gegenstand  der  Rechtswissenschaft,"  Z.  G. 
S.  (1882),  p.  211;  and  its  review  by  Frassati,  "Die  neue  positive  Schule  des  Straf- 
rechts in  Russland,"  id.  (1890),  X,  5;  and  "La  nuova  scuola  positiva  in  Italia  ed 
all'  estero"  (Turin,  1891),  p.  229;  Gauckler,  B.  U.  I.  D.  P.  (1893),  IV,  37;  Dalle- 
mqgne,  "La  sociologie  criminelle";  Tarde,  "La  sociologie  criminelle"  (September, 
1893),  with  monographs  by  Garofalo  and  Liszl;  Meinrich,  "Strafrecht  und  Krimi- 
nalpoUtik,"  Z.  G.  S.  (1897),  XVI,  779. 


558  PRACTICAL  REFORMS  [§351 

of  juridical  phenomena,  which  we  have  met  before,  in  the  dis- 
tinction made  by  the  classicists  between  social  and  juridical 
defense,  hes  at  the  bottom  of  the  alleged  separation.  But,  admit- 
ting (as  must  be  admitted)  that  juridical  phenomena  are  really 
social,  because  law  and  society  are  inseparable  and  correlative 
terms,  the  artificiahty  of  thus  separating  the  science  which  studies 
crime  as  a  juridical  phenomenon  from  that  which  studies  it  as  a 
social  phenomenon  becomes  apparent  at  once. 

Criminal  and  penal  law,  as  a  science  existing  "per  se,"  can 
only  be  understood  by  continuing  the  classical  concept  of  crime  as 
an  abstract  juridical  entity,  separated  from  natural  reality,  which 
is  its  proper  sphere.  It  is  incomprehensible,  when  it  is  admitted, 
as  most  writers  admit  as  an  inevitable  concession  to  the  facts 
established  by  positive  science,  that  the  juridical  phenomenon  of 
crime  is  only  a  social  phenomenon,  provided  that  crime  exists 
as  a  natural  fact  whose  diverse  factors  and  aspects  can  be  pre- 
dicted and  studied,  but  remain  commonly  inseparable.  As  it 
would  be  absiu-d  to  separate  the  study  of  the  individual  factors 
of  the  crime,  from  that  of  its  social  factors,  it  would  be  absurd 
to  pretend  to  separate  the  study  of  its  natural  and  social  aspect 
from  that  of  its  juridical  aspect.  The  scientific  and  experimental 
study  of  the  crime,  and,  as  a  consequence,  of  the  preventive 
and  repressive  means  which  may  protect  society  from  it  —  this  is 
what  constitutes  criminal  sociology,  a  science  both  unique  and 
complex.  This  does  not  mihtate  against  distinct,  although 
parallel  and  inseparable,  subdivisions,  according  to  the  special 
aspects  of  the  criminal  phenomenon  and  of  the  means  of  combat- 
ing it.  It  is  strange  that  Liszt,  for  example,  would  separate 
penal  crime  from  criminal  sociology  (which  he,  like  Puglia, 
mistakenly  looks  upon  as  a  synonym  of  criminal  statistics),  when 
he  refuses  to  admit  that  penology  exists  as  autonomous  science, 
and  correctly  reports  it  as  a  subdivision  of  the  general  science 
of  crime  and  punishment.  This  alleged  separation  between  penal 
law  and  criminal  sociology  has  not  only  a  theoretical  importance, 
but  a  practical  importance  as  well.  The  beliefs  that  the  crimi- 
nologists must  study  crime  and  punishment  only  as  juridical  en- 
tities, leaving  it  to  sociologists  to  deal  with  crime  as  a  social 
phenomenon  in  its  natural  genesis,  and  hence  to  prophylaxis  to 
obtain  preventative  doctrines,  and  on  the  other  hand  making  it 
the  duty  of  penitentiary  science  to  take  up  punishment  as  the 
practical  application  of  an  abstract  legal  rule,  results  (as  in  the 


§  351]  CONCLUSION  559 

case  of  the  classical  school)  that  each  one  of  these  sciences  goes 
its  own  way,  without  any  relation  between  them,  often  suf- 
fering from  opposition  in  object  and  method.  Who  suffers  from 
this?  Civil  society,  which  remains  defenseless  against  the  attacks 
of  criminals  and  can  do  nothing  to  ward  them  off,  and  the  con- 
demned, who  is  lost,  a  victim  of  the  incoherent  workings  of  a 
blind  repressive  mechanism. 

An  example.  A  kills  B  to  rob  him.  This  is  a  fact  of  daily 
occurrencie  under  one  form  or  another.  It  must  be  studied.  Let 
us  begin  with  the  misdeed.  The  criminal  sociologist  studies  the 
causes  which  have  induced  this  man  to  commit  miu'der.  Up  to 
the  present,  classical  criminal  science  has  not  dealt  with  these 
at  all,  accepting  the  accomplished  fact.  In  this  it  was  wrong, 
as  we  must  acknowledge,  but,  not  to  go  too  fast,  it  is  well  to  recog- 
nize, also,  that  the  criminal  sociologist  must  have  a  knowledge  of 
criminal  anthropology  and  statistics  and  study  the  natural  factors 
of  this  crime.  The  results  of  this  study  will  be  interesting,  but  it 
is  better  to  accept  the  law  of  the  division  of  labor.  The  criminol- 
ogists study  the  murder  as  a  juridical  fact,  seeing  whether  it  was  an 
attempt  or  a  consummated  homicide,  whether  or  not  there  was  a 
premeditation,  and  of  what  degree.  But  let  him  confine  himself 
to  such  aspects  of  the  act,  or,  at  most,  determine  the  punishment 
suited  to  the  moral  responsibility  of  the  murderer.  The  police 
officer  has,  unfortunately,  nothing  more  to  do  in  the  case,  but  he 
is  on  the  lookout  for  more  homicides,  —  by  watching  suspects, 
closing  saloons  at  a  fixed  hour,  and  preventing  the  carrying  of 
concealed  weapons. 

The  procedurist  considers  the  best  means  for  trying  the 
murderer,  remembering  that  he  is  a  victim  of  social  authority 
and  that  he  must  be  protected  from  excess  of  power,  and  pre- 
venting him  from  merely  appearing  "pro  forma"  in  arguments 
where  the  judge  is  concerned  with  the  crime  which  he  has  com- 
mitted, and  the  statute  to  be  applied  to  it.  If  he  is  sentenced 
to  a  term  in  gaol,  the  penitentiarist  must  not  trouble  himself 
with  the  work  of  the  sociologist,  but  study  a  system  of  imprison- 
ment, remembering  that,  the  term  elapsed,  he  can  free  his  prisoner 
without  a  moment's  worry  concerning  his  colleague's  part  in  this 
strange  collaboration.  This  is  the  course  under  the  present  system 
and  it  will  continue  if  criminal  sociology  is  merely  added  to  the 
other  sciences,  which  usually  lend  to  penal  law  an  indifferent 
assistance.    This  is  so  generally  accepted  that  in  treatises  on  penal 


560  PRACTICAL  REFORMS  [§  351 

law,  for  example  those  by  Garraud  and  Liszt,  criminal  sociology 
is  mentioned  in  the  introduction  with  the  other  auxiliary  sciences, 
but  thereafter  the  criminologist  continues  his  ordinary  syllogistic 
work  on  crime  and  punishment  "as  juridical  phenomena,"  or  ab- 
stract entities,  without  further  thought  as  to  the  determinative 
conditions,  or  the  execution  and  eflFect  of  the  penal  sanctions  which 
he  prescribes.  And,  criminaUty,  an  unhealthy  weed,  grows  vigor- 
ously and  extends  constantly  deeper  roots  in  the  enormous  soil 
of  continuity  which  exists  in  the  text  of  the  statutes,  the  sentences 
of  the  judges,  and  the  organization  of  prisons  and  preventative 
measures.  But,  positivists  beUeve  that  the  phenomenal  order  is 
a  unit,  that  the  science,  which  studies  causes,  conditions,  and 
remedies,  must  also  be  single.  Of  course,  the  criminal  sociologist 
cannot  "ex  hoc"  be  an  anthropologist,  statistician,  and  peniten- 
tiarist,  as  every  positivist  has  been  until  the  present,  because, 
as  every  one  knows,  division  of  labor  cannot  exist  at  the  beginning 
of  science,  but  he  cannot  remain  a  stranger  to  the  studies  and 
results  of  these  special  sciences,  which  are  subdivisions  of  the 
more  complex  sciences.  The  economist-sociologist  cannot  "ex- 
professo"  know  chemistry,  physiology,  psychology,  and  statistics, 
and  yet  he  cannot  be  a  sociologist  unless  by  studying  the  relations 
between  the  results  of  these  particular  studies  and  economic 
phenomena,  he  knows,  follows,  and  appUes  the  fundamental 
inductions,  which  they  furnish. 

And  in  criminal  sociology,  there  is  a  most  intimate  connec- 
tion among  the  parts  which  compose  it,  for  the  reason  that 
they  all  bear  upon  a  single  fact,  complex  and  many-angled,  that 
is,  on  crime  and  the  necessity  to  which  it  subjects  us  of  de- 
fending ourselves  against  it,  either  by  preventing  its  manifesta- 
tions or  reprimanding  its  author  in  the  most  effective  way. 
The  separation  between  penal  law  and  criminal  sociology 
has  recently  appeared  in  a  form  less  ingenuous  and  less  frank. 
It  is  alleged  that  criminal  sociology  is  not  an  auxiliary  science 
of  criminal  law,  but  is  the  same  as  criminal  pohtics,  "Kriminal- 
politik."  Furthermore,  Liszt,  who  reproduces  many  of  the  con- 
clusions of  the  positive  school,  without  speaking  of  those  from 
whom  he  has  borrowed  them,  states  that  he  does  not  believe  in 
the  existence  of  criminal  politics,  based  on  criminal  biology  (an- 
thropology) nor  in  criminal  sociology  (statistics).  Developing  the 
idea,  which  he  once  offered,  he  defines  it  as  "the  systematic  sum 
of  principles  founded  on  the  scientific  examination  of  the  origins 


§  351]  CONCLUSION  561 

of  crime  and  the  result  of  punishment,  principles  in  accordance 
with  which  the  State  must  fight  delinquency  by  means  of  penalties 
or  analogous  institutions."  And  this  criminal  politics  will  always 
be  separate  from  penal  law  properiy  so  called,  which  deals  with 
crime  and  punishment  in  a  technical  juridical  aspect.^  Liszt, 
too,  does  not  accept  all  the  results  furnished  by  criminal  anthro- 
pology, but  putting  this  aside,  his  concept  of  criminal  politics  is 
equivocal  and  antagonistic.  It  is  equivocal  if  he  considers  crimi- 
nal politics  to  be  the  science  of  criminology  studied  by  the  positive 
method  as  a  natural  and  social,  and  not  simply  as  a  juridical 
phenomenon,  for  then  criminal  politics  would  only  be  criminal 
sociology.  This  was  admitted  by  Liszt  himself,  that  the  ilew  sub- 
divisions of  criminology  and  penology  are  incomplete,  provided 
that  in  their  inspiration  of  positive  studies  they  regard  only  crime 
and  punishment  and  do  not  embrace  the  sum  of  the  penal  sciences 
which  he  would  designate  in  this  connection  by  the  phrase  "ge- 
samte  Strafrechtswissenschaft." 

But,  on  one  hand,  it  is  a  mistake  to  make  criminal  sociology 
a  synonym  for  criminal  statistics,  in  order  to  do  away  with 
the  comprehensive  title  of  criminal  sociology,  which  is  its  only 
exact  and  complete  name;  and  on  the  other  hand,  this  new 
isolation  of  penal  law  as  a  technical  juridical  study  of  crime 
and  punishment  outside  of  the  alleged  criminal  poUtics  (taken 
in  the  larger  sense)  and  a  pure  scholastic  exercise  of  abstract 
theories  is  incomprehensive.  This  definition  of  criminal  poli- 
tics is  chiefly  erroneous  because,  if  there  really  can  be  criminal 
politics,  it  can  only  be  the  practical  art  of  fitting  the  general 
conclusions  of  criminal  sociology  to  the  particular  exigencies  and 
conditions  of  each  country  and  historical  phase.  Such  is  the 
significance,  given  by  the  old  German  jurists  to  the  expression 
"Kriminalpolitik,"  as  is  proved  by  the  phrase  of  Hencke,  whom 
Liszt  quotes,  "Whoever  would  seek  the  basis  of  criminal  poh- 
tics  even  theoretically,  and  more  particularly,  whoever  is  obliged 
to  apply  this  science  as  a  legislator,  must  endeavor  first  of  all  to 

^  Liszt,  " Kriminalpolitische  Aufgabe";  "Die  psychologischen  Gnmdkgen 
der  Kriminalpolitik,"  Z.  G.  S.  (1896),  XVI,  477;  "Lehrbuch  des  deutschen  Straf- 
rechts,"  Intro. 

Varga,  "Abschaffung  der  Strafknechtschaft,"  distinguishes  criminal  anthro- 
pology, criminal  law,  and  criminal  politics.  Gross,  "Manual  pratique  d'in- 
stmction  judiciaire,"  2d  vol.  (Paris,  1897),  and  " Kriminalistik,"  in  the  "Revue 
penale  suisse"  (1897),  p.  269.  This  is  the  art  of  gathering  proof  and  detecting 
crime  and  delinquents,  according  to  the  data  of  anthropology  and  criminal  psy- 
chology.    See  also,  Fahr,  "  Straf rechtspflege  und  Socialpolitik"  (Berlin,  1892). 


562  PRACTICAL  REFORMS  [§352 

understand  the  basis  of  human  nature  as  well  as  its  laws  of  de- 
velopment in  time  and  space.  Anthropology,  in  the  broadest 
sense  of  this  word,  and  the  history  of  the  evolution  of  peoples, 
comprise,  therefore,  the  most  indispensable  knowledge  for  the 
study  of  criminal  poUtics.  It  is  no  less  important  to  study  the 
origin  of  crime,  for  its  birth  is  often  due  less  to  degeneracy  or 
moral  perversion  in  the  evildoer  than  to  the  imperfection  of  the 
laws  and  institutions  of  civil  society."^ 

§  352.  Value  of  Origin  of  Crime  as  a  Basis  of  Criminology. 

It  thus  appears  that  it  is  a  question  of  the  legislative  art  of 
fitting  measures  of  repression  and  penal  defense  which  the  science 
of  criminal  law  ("Kriminalrecht")  abstractly  estabUshes  for  the 
special  conditions  of  each  nation.^  It  is,  therefore,  a  distinc- 
tion analogous  to  that  which  common  usage  makes  between  crimi- 
nal and  practical  sociology,  although  the  sciences  governed  by 
the  positive  method  do  not  freely  accept  this  distinction  between 
theory  and  practice  which  was  inevitable  when  apriorism  sepa- 
rated the  abstract  norms  of  science  from  the  realities  of  daily 
life,  as  under  the  classical  criminal  school  regime,  among  others. 
Thus,  to  conclude,  either  criminal  politics  must  be  taken  in  the 
theoretical  sense  of  a  scientific  study  of  delinquency  and  the 
defensive  means  aimed  to  combat  it,  in  which  case  it  is  equivocal, 
because  this  study  inaugurated  by  the  positive  criminal  school 
constitutes  criminal  sociology,  while  including  also  studies  bear- 
ing on  actual  data  (criminal  anthropology  and  statistics),  as  well 
as  those  which  deal  with  the  inductions  to  be  made  from  these 
facts  (criminology  or  criminal  law  and  theory,  as  well  as  preven- 
tive defense —  equivalents  of  punishment  and  poUce —  and  re- 
pressive defense —  reparatory,  repressive,  and  ehminatory  means 
or  penology);  or  else  the  term  criminal  politics  must  be  taken  in 
the  most  exact  sense,  that  is  to  say,  as  designating  a  practical 
art  by  which  the  legislators  deduce  the  rules  of  criminal  science 
from  the  heaven  of  abstractions  for  terrestrial  realities. 

Thus  defined  it  can  be  accepted  up  to  a  certain  point,  although 

*  Hencke,  "Handbuch  des  Criminalrechts  und  der  Criminalpolitik"  (Beriin, 
1825),  I,  §  31,  29. 

*  This  was  said  by  Bemer,  "Trattato  di  diritto  penale"  (Italian  translation, 
Milan,  1887) ;  see  also  Richard,  "  La  responsabilit^  et  les  equivalents  de  la  peine," 
in  the  "Revue  philosophique"  (November,  1899).  WTiat  Carrara  called  "pratique 
legislative"  (Turin,  1874);  which  he  thought  was  only  the  practical  art  of  formu- 
lating the  abstract  rules  of  criminal  theory  into  law. 


§353]  CONCLUSION  56S 

the  experimental  method  considerably  diminishes  the  distinctions 
and  differences  between  theory  and  practice,  principles  and  facts; 
for  in  the  positive  sciences,  theory  can  only  be  practice  systemati- 
cally observed,  and  practice  can  only  be  theory  put  in  action.  So, 
as  has  already  been  said,  in  the  penal  doctrine  and  legislation  of 
the  future,  there  can  be  no  more  excuse  for  the  multitude  of  in- 
tricate discussions  on  the  pathological  reasons  of  irresponsibiUty, 
attempts,  complicity,  recidivity,  and  the  accumulation  of  crimes 
and  punishments,  while  in  penal  procedure  there  will  be  no  place 
for  all  the  discussions  on  such  themes  as  appealabiUty  and  irrev- 
ocabiUty  of  sentences,  etc.  In  the  second  Italian  edition  of  this 
book  it  was  stated,  therefore,  that  a  knowledge  of  the  appUcation 
of  the  experimental  method  to  social  and  juridical  sciences,  intro- 
duced by  the  modern  tendency  of  scientific  thought,  would  re- 
create civil  law  as  it  had  already  recreated  the  science  of  crime 
and  punishment;  and  this  statement  has  been  fully  verified.  As, 
however,  in  political  economy  a  positive  school  grew  up,  which 
reached  conclusions  very  different  from  those  of  classical  and 
orthodox  economics,  so,  above  all  in  Italy,  a  new  scientific  current 
develops  from  day  to  day  in  the  study  of  civil  law  which  tends  to 
free  it  from  the  remnants  of  the  theories  of  ancient  Roman  law, 
which  economic  and  social  conditions,  totally  different  from  those 
of  the  modern  world,  inspired,  and  which  was  more  and  more 
influenced  by  an  exaggerated  individualism.  On  the  12th  day  of 
November,  1873,  Carrara  in  his  opening  lecture  on  criminal  law 
and  penal  procedure,  concluded  by  commending  the  students 
to  study  the  latter  rather  than  the  former,  because  in  it  "there 
remained  something  to  be  added  to  the  work  of  our  ancestors."  ^ 
It  is  only  too  true  that  we  must  turn  to  the  study  of  penal  proce- 
dure, to  which  the  Italian  jurists  have  until  to-day  given  too 
little  thought.  The  principles  of  procedure  are  largely  responsible 
for  the  fundamental  criteria  of  the  right  of  punishment,  so  it  is 
necessary  by  application  to  the  study  of  procedure  to  give  a  solid 
and  permanent  basis  to  that  essential  foundation  of  criminal  law 
which  is  disturbed  to-day  by  the  new  discoveries  made  by  the 
natural  and  social  sciences. 

§  353.  Ultimate  Significance  of  New  Discoveries  and  Methods. 
We  can  summarize  in  their  ultimate  significance  the  theoretical 
and  practical  innovations  which  the  experimental  methods  and 
^  Carrara,  "Opuscoli  di  diritto  penale,"  Vol.  V,  p.  89. 


564  PRACTICAL  REFORMS  [§353 

the  results  of  positive  observation  have  introduced  concerning 
the  natural  origin  of  the  criminal  phenomenon,  and  of  the  meas- 
ures of  social  protection  which  must  oppose  it.  Crime,  in  place  of 
being  the  "fiat"  of  a  free  and  evil  will,  is  a  natural  phenomenon  de- 
tennined  by  anthropological,  telluric,  and  social  factors,  and  as  such 
is  a  symptom  of  individual  and  social  pathology.  The  remedy 
against  criminality  cannot,  therefore,  consist  in  the  panacea  of  pun- 
ishment alone;  or  cannot  so  exist  against  all  forms  of  crime,  viti- 
ated as  it  is  by  traces  of  the  violence  and  torture  of  the  Middle 
Ages,  and  at  the  same  time  by  the  illusory  pretension  of  measuring 
the  moral  fault  of  the  delinquent  and  applying  a  proportionate 
punishment  thereto.  The  increase  of  criminaUty,  in  general,  and 
above  all  of  the  criminality  of  minors,  as  well  as  the  spreading 
disease  of  recidivity,  prove  how  powerless  the  classical  systems 
are,  both  in  defending  society  and  in  saving  individuals  from  a 
progressive  degeneration.  Penal  justice,  unforeseeing  and  disor- 
ganized in  its  diverse  branches,  must,  therefore,  be  transformed 
into  a  function  of  preservation  from  the  disease  of  crime.  It  must 
rely  more  on  measures  and  methods  of  social  prevention  than  on 
the  violence  of  a  brutal  repression,  always  powerless  to  suppress 
or  decrease  its  effects,  while  leaving  its  causes  untouched. 

This  social  prevention,  founded  on  the  distinction  between  atavic 
and  evolutive  criminality  can  rely  in  regard  to  this  latter  function  in 
the  ultilization  of  rebellious  energy  by  directing  it  in  forms  of  social 
activity.  Against  the  pathological  impulses  of  atavic  criminahty, 
it  should  consist  in  the  ehmination  and  attenuation  of  the  causes 
of  individual  and  social  degeneration,  and  in  estabhshing  a  gen- 
erally better  economic  and  social  order.^  And  when  in  spite  of 
the  measures  and  cares  of  social  prevention,  the  criminal  phe- 
ncanenon  manifests  itself  under  residual  and  inevitable  forms,  like 
every  other  form  of  acute  or  chronic  pathology,  the  defensive  func- 
tion, without  any  spirit  of  vengeance,  hate,  torture,  intimidation, 
or  ethico-juridical  retribution  should  be  exercised  in  a  manner 
essentially  different  against  forms  of  atavic  and  of  evolutive  crim- 

1  Lombroso,  "L'uomo  delinquente,"  5th  ed..  Vol.  Ill,  concluded  with  the  idea  of 
symbiosis,  that  is,  the  utilization  of  the  energies  which  determine  crime.  But 
if  this  solution  should  be  accepted  for  forms  and  tendencies  of  evolutive  crim- 
inality, it  must  be  complemented  by  the  idea  of  isolation  for  the  forms  of  atavic 
criminality.  Let  us  add  that  for  all  forms  symbiosis,  applicable  in  the  transitory 
period,  would  be  less  efficacious  than  a  profound  change  in  the  condition  of  indi- 
vidual and  social  existence,  as  is  stated  and  foretold  by  socialistic  sociology,  for 
it  will  suppress  the  epidemic  forms  of  occasional  or  habitual  criminality,  and 
<Hily  isolated  and  acute  forms  will  survive. 


§§  354,  355]  CONCLUSION  565 

inality  by  adaptation  to  the  special  anthropological  category  of 
the  dehnquents  according  to  the  act  committed,  but  above  all, 
according  to  the  determinative  motives.  Measures  of  social  de- 
fense should  be  reduced  either  by  reparation  in  damages  (in  cases 
of  petty  crimes  by  far  the  most  numerous,  committed  by  less 
abnormal  delinquents  for  inexcusable  motives)  or  to  isolation  for 
an  indeterminate  period  in  asylums  for  the  criminal  insane  or  farm- 
ing colonies  under  a  discipline  differing  according  to  the  different 
anthropological  characters  of  the  inmates. 

§  354.  Penal  Procedure  in  the  Future. 

Procedure  should  reduce  itself  to  a  scientific  systematization 
embracing  a  judiciary  police  (for  the  collection  of  evidence),  where 
the  defense  will  be,  like  the  prosecution,  a  public  function,  when 
the  judgment  will  be  entrusted  to  independent  magistrates  who  have 
undergone  a  technical  course,  and  where  sentences  will  be  periodi- 
cally revised  during  execution  by  permanent  technical  com- 
mittees who  will  rigorously  limit  the  period  of  isolation  to  the 
time  necessary  for  social  adaptation.  This  isolation  should,  Uke 
that  to  which  the  uncriminal  insane  are  subjected,  consist  only 
in  the  hygienic  discipline  of  work  without  any  trace  of  the  bar- 
barous torture  and  bad  treatment  of  the  past.  Only  the  neces- 
sary clinical  and  therapeutic  restrictions  will  be  applied,  as  is 
done  to-day  in  the  case  of  patients  in  hospitals  and  insane  asylums. 

§  355.  The  Penal  Science  of  the  Future. 

Criminology  will  be  in  an  entirely  different  moral  world.  Classi- 
cal criminal  science  was  based  on  the  ethico-religious  idea  that 
man,  the  lord  of  creation,  was  the  agent  and  arbiter  of  his  own 
destiny,  and  that  consequently,  even  on  earth,  through  an  antici- 
pation of  the  eternal  judgment  in  the  world  to  come,  which  in  its 
turn  was  an  anthropomorphic  reflection  of  terrestrial  judgments,  man 
should  be  judged  for  his  moral  fault,  and  punished  accordingly.^ 

^  Thus,  as  in  the  realm  of  theory,  as  I  have  said,  criminal  sociology  is  to  penal 
law  what  psychiatry  is  to  demonology,  chemistry  to  alchemy,  astronomy  to  as- 
trology, so,  in  practice,  Roberty's  statement  has  been  found  true:  "Criminality 
and  penality,  as  understood  and  practised  to-day,  will  be  relegated  with  a  mass 
of  other  social  phenomena,  such  as  cannibalism,  human  sacrifices,  the  primitive 
family,  and  the  early  forms  of  ownership,  the  ancient  city  and  feudalism;  phe- 
nomena which  have  left  traces  but  which  are  modified  and  changed  to  such  a 
degree  as  to  appear  dead  and  buried."  Roberty,  "Des  fondements  de  I'^thique" 
(Paris,  1878),  p.  75. 


566  PRACTICAL  REFORMS  [§  355 

But  the  naturalistic  philosophy  from  the  year  1850,  impelled  by 
the  new  data  furnished  by  the  experimental  sciences  from  astron- 
omy to  biology,  and  from  zoology  to  sociology,  has  completely 
dissipated  the  moral  and  intellectual  mists  left  by  the  IVIiddle 
Ages.  Man,  descended  from  the  high  pedestal  on  which  he  had 
placed  himself  and  become  an  imperceptible  atom  in  the  vast 
ocean  of  universal  life,  recognized,  as  he  had  to  do,  willy  nilly, 
that  he  was  subject  to  the  eternal  laws  of  nature  and  life.  How 
could  it  be  possible,  therefore,  in  criminal  and  penal  science  to 
still  erect  the  syllogisms  of  the  past  on  the  old  ethico-religious 
foundations  of  man  as  the  absolute  master  of  himself  and  morally 
culpable? 

There  was  and  still  is,  as  we  must  recognize,  a  grave  crisis 
of  morahty  and  penal  law,  which  is  in  the  closest  and  most  fre- 
quent contact  with  morals,  but  "ex  morte  vita."  It  is  we  who, 
by  changing  our  manner  of  conceiving  and  explaining  the  world, 
beheve  that  the  world  is  going  to  ruin.  Natural  laws,  however, 
remain  what  they  have  always  been,  and  the  world  keeps  the  even 
tenor  of  its  way  regardless  of  the  explanations  of  philosophers 
and  the  discoveries  of  scientists.  The  genius  of  Galileo  and 
Newton  has  not  changed  even  to  the  slightest  degree  the  law  of  the 
phenomenon  of  gravity.  The  genius  of  Lavoisier  andWurtz  has 
in  no  wise  troubled  the  infinite  variety  of  the  molecular  combina- 
tions in  the  chemical  domain.  The  genius  of  Vesale  and  Darwin 
has  not  in  the  least  altered  the  atomic  dispositions  or  hereditary 
transformations  of  organic  hfe.  No  more  has  the  genius  of  Spencer, 
Comte,  and  Marx  altered  the  scheme  of  social  phenomena.  The 
discoveries  of  these  great  men,  and  the  inexorable  scientific  pre- 
cision with  which  they  have  defined  the  laws  which  they  have 
found,  have  only  given  us  a  knowledge  each  day  more  complete 
of  the  physical  and  moral  world  in  the  midst  of  which  we  live. 

From  the  destruction  of  the  old  anthropomorphic  illusions  has 
arisen  the  fecund  vitality  of  the  new  experimental  knowledge. 
Can  criminal  science  still  remain  a  stranger  to  this  prodigious 
renaissance  in  the  method  and  induction  of  the  natural  and  social 
sciences,  by  remaining  steadfast  in  a  blind  faith  to  the  ethico- 
juridical  dogmas  which  have  until  the  present  time  served  as  its 
basis  and  which  have  received  under  the  classical  school  a  perfect 
juridical  development  from  a  logical  point  of  view  although  experi- 
mentally illusory?  Of  course,  if  we  would  follow  the  lead  of  the 
most  illustrious  masters  of  the  classical  school  we  can  only  com- 


§  355]  CONCLUSION  567 

mend  and  study  their  magnificent  treatises,  but  no  limit  can 
ever  be  placed  to  any  science  because  the  eternal  advance  of 
natural  facts  will  always  give  new  direction  and  new  fields  to  new 
evolutions.  This  is  why  we  profit,  with  sincere  gratitude,  by  the 
work  accomplished  before  our  day  by  our  predecessors,  not  only 
in  their  historic  mission,  which  was  a  general  lessening  of  punish- 
ment, but  above  all  in  the  juridical  study  which  they  have  made 
of  crime,  without  which  our  science  would  not  now  be  possible. 
And  yet  we  consecrate  ourselves  to  a  new  mission,  the  diminution 
of  crimes.  We  enter,  with  the  natural  study  of  crime  and  the 
principle  of  social  responsibihty,  upon  a  road  that  the  jurists  have 
not  yet  attempted,  and  whose  difficulties  we  recognize  without 
fear,  because  combat  was  always  a  condition  of  victory. 

And  while  some  deny  our  school  "in  order  not  to  desecrate  the 
scientific  heritage  which  was  the  glory  of  our  fathers,"  we  beheve 
that  there  are  two  means  of  avoiding  such  desecration .  We  can  either 
receive  it  and  transmit  it  intact  to  our  successors  by  simple  labor 
of  scientific  repetition,  and  this  is  the  more  pleasant  and  agree- 
able way;  or  we  can,  through  our  efforts,  give  it  greater  weight 
and  richness,  which  we  believe  is  the  first  duty  of  scientists.  Every 
age  has  its  mission.  In  science,  as  in  politics,  the  older  generation 
must  be  conservative,  and  the  younger  radical,  if  the  rhythm  of 
human  life  is  to  continue  in  conformity  with  the  laws  of  nature. 
The  explanation  of  the  positive  school  in  Italy  and  elsewhere  dur- 
ing the  few  years  that  it  has  existed  constitutes  an  additional 
fact  which  it  is  sufficient  for  us  to  recall  in  the  conclusion  of  this 
book,  because  it  is  a  good  augury  for  the  future  of  penal  science 
and  practice.  Positivism  possesses,  among  many  advantages,  that 
of  increasing  true  modesty  by  teaching  us  to  seek  the  complex 
causes  of  each  fact,  and  yet  we  take  credit  for  the  constantly  in- 
creasing expansion  of  this  study,  due  doubtless  to  our  enthusiastic 
and  indefatigable  work,  but  even  more  to  the  correspondence 
which  exists  between  our  ideas  and  the  manifest  realities  of  daily 
life.  It  is  this  correspondence  which  gives  a  promise  of  future 
triumphs,  which  we  await  without  too  much  impatience,  with  the 
security  of  the  strong  with  no  intolerance,  and  with  the  calmness 
of  the  soul  which  trusts  to  the  labor  and  justice  of  the  future.  In 
the  course  of  my  philosophic  studies,  when  I  first  read  "Homme 
Machine"  by  Lamettrie,  I  was  remarkably  astonished  that  such 
a  book  had  condemned  its  author  to  execution  in  effigy,  for  it  only 
expressed  ideas  which  to-day  are  for  the  most  part  admitted,  even 


668  PRACTICAL  REFORMS  [§355 

by  the  spiritualists  and  by  public  opinion.  I  was  astonished,  but 
I  took  consolation  in  the  evident  proof  that  nothing  stops  the 
progress  of  ideas.  Since  then  I  have  seen  a  reproduction  of  the 
same  fact  every  time  that  I  have  begun  a  new  study.  The  ideas 
of  Beccaria,  to-day  orthodox  and  classical,  created  the  greatest 
possible  hostility  in  their  day.  Forty  years  ago  in  the  scientific 
reviews,  for  example,  in  the  "Annales  medico-psychologiques," 
I  read  propositions  and  theories  which  then  were  the  object  of 
anathema  at  the  hands  of  official  scientists,  and  whose  triumph 
is  now  so  complete  that  they  have  become  commonplace  truths. 
In  science,  as  in  life,  the  conservative  of  to-day  calmly  admits 
ideas  which  a  few  years  before  were  only  held  by  the  most  thorough 
radicals.  Progress  is  inevitable,  because  life  is  movement.  And 
furthermore,  social  progress  is,  to  borrow  a  formula  of  mechanics, 
a  uniformly  accelerated  movement. 

This  is  not  all:  I  have  seen,  also,  that  the  triumph  of  an  in- 
novation never  completely  effaces  the  prior  ideas  in  so  far  as 
they  conform  to  truth :  no  theory  is  entirely  false  or  entirely  true. 
In  each  new  distinction,  says  Ardigo,  what  was  formerly  indis- 
tinct persists  as  a  basis.  So  it  is  with  scientific  thought,  whose 
development  is  not  and  cannot  be  a  sterile  succession  of  total 
negations  and  absolute  affirmations,  such  as  those  presented 
by  metaphysics,  but,  on  the  contrary,  must  be  a  progressive 
evolution  of  new  growths  on  the  old  trunk  of  primal  truths, 
with  an  eternal  progressive  revival.  A  large  number  of  the 
partial  ideas  and  inductions  of  the  new  criminal  science  renewed 
by  the  positive  method,  will  fall,  as  is  the  common  destiny  on 
the  road  to  the  future.  But  that  which  will  remain  unshaken, 
is  the  humane  idea  of  the  delinquent  introduced  by  criminal  an- 
thropology. And  also  is  the  purification  of  penal  justice  deprived 
of  what  remains  of  the  spirit  of  violence  and  torture  of  the  Dark 
Ages,  a  purification  necessitated  by  criminal  sociology,  so  that 
it  may  become  a  clinical  function  of  social  preservation  against 
the  sporadic  cases  of  criminality  (traumatic  or  psycho-patho- 
logical), which  will  continue  to  exist  in  a  better  organized 
society. 

Hence,  penal  justice  as  an  establishment  of  violent  repression 
and  class  domination  is  destined  to  disappear,  and  to  exist  only 
as  a  clinical  function.  This  is  true  because  the  development  of 
penal  justice  has  always  been  and  will  always  continue  to  be  in 
inverse  ratio  with  the  development  of  social  justice.     As  ordin- 


§355]  CONCLUSION  569 

ary  justice  develops  and  organizes,  the  importance  of  penal  jus- 
tice will  diminish,  and  as  justice  ceases  to  be  a  coercive  external 
and  material  mechanism,  it  will  become  more  and  more  an  inti- 
mate general  organic  sentiment,  the  product  of  a  social  environ- 
ment which  will  insure  to  every  man  the  material  and  moral 
conditions  of  everyday  existence.  This  means  that  the  disap- 
pearance of  penal  justice  as  a  political  institution  will  coincide 
naturally  and  necessarily  with  the  universal  predominance  of 
justice  as  a  specific  sentiment  and  force  in  social  life. 

As  has  been  said  elsewhere,^  criminal  sociology,  as  well  as 
criminal  science  will  finally  lose  its  importance,  for  it  will  dig 
its  own  grave,  because  through  the  scientific  and  positive  diag- 
nosis of  the  causes  of  criminality,  and  hence  through  the  in- 
dication of  partial  and  general  individual  and  social  remedies  to 
combat  it  in  an  effective  manner,  it  will  reduce  the  number  of  de- 
linquents to  an  irreducible  minimum,  where  they  can  enter  into  the 
future  organization  as  a  daily  modification  of  civilized  society,  and 
where  the  less  penal  justice  there  shall  be,  the  more  social  justice 
will  necessarily  follow. 

^  "Leson  d'ouverture  au  cours  de  sodologie  criminelle  k  Bruxelles,"  in  the 
"Revue  universitaire"  (December,  1895). 


INDEX 


Acquittals,  table  showing  number  of, 
219. 

Action,  conviction  impossible  when 
free  will  lacking,  375;  determinative 
motives  of,  423;  environment  con- 
trols, 293;  evolution  of,  291;  hered- 
ity controls,  293;  moral  freedom  of, 
290. 

Alcohol,  crime  increased  by,  249,  252; 
imposts  decrease  crime,  248;  rem- 
edies against,  255;  therapeutic 
remedies,  257. 

Anthropological  Criminal  School,  gene- 
sis of,  40;  methods  of,  43. 

Anthropological  Criminal  Type,  exist- 
ence of,  86. 

Anthropological  data,  miscitation  basis 
of  criticism,  64. 

Appeals,  State's  right  to,  448. 

"A  Priori"  method,  criticism,  16. 

Assassins,  cranial  indices  of,  55. 

Assizes,  habitual  delinquency,  136. 

Atavism,  crime  proceeding  from,  107; 
organic  and  psychic,  67. 

Attempts,  criteria  applicable  to,  430; 
legislative  provisions  against,  430. 

Auburn  Prison,  discussion  of  system, 
541. 

B 

Beccaria,  criminal  school  of,  2. 
Beggars,  children  degenerate,  275. 
Bertillion     method,     identification     of 

criminals  by,  34. 
Bigamy,  prevention  of,  270. 
Biological    data,    applied    to    criminal 

law,  436. 
Born  Criminals,  capital  punishment  of, 

627;  classification  of,  144. 


Bom  Delinquents,  detennination  of,  27. 
Brussels,    Congress    of    Criminal    An- 
thropology, 26. 


Capital  punishment,  bom  criminals  not 
to  receive,  528;  infrequency,  effect 
on  crime,  532;  infrequent,  tendency 
to  increase  crime,  530;  intimidating 
effect  of,  531;  utility  questionable, 
528. 

Carnivorous  food,  tendency  to  homidde 
produced  by,  58. 

Cabbara,  theory  of,  4. 

Categories,  differences  are  of  degree 
only,  157. 

Cells  system,  opposition  to,  34. 

Cellular  system,  aberrations  of  nine- 
teenth century,  542;  attempts  to 
prevent,  541;  description  of,  540; 
recognized  ineflSiciency,  440;  reform 
not  provided  by,  543. 

Cephalic  index,  propensity  to  homicide, 
47. 

Cereals,  crime  increased  by,  210. 

Cerebral  volume,  psychic  development 
not  wholly  determined  by,  59. 

Childhood,  neglect  causes  crime,  275; 
neglect  produces  crime,  261. 

Children,  abandonment  produces  crime, 
275;  convict  fathers  produce  de- 
generacy, 275. 

Churches,  luxury  produces  crime,  271. 

Civilization,  pathological  incidents,  178. 

Civil  Law,  relations  to  criminal  law, 
413. 

CoLAJANNi,  criticism  of  classification, 
189. 

CompUcity,  criteria  applicable  to,  431. 


571 


57« 


INDEX 


Conditional  sentence,  description  of, 
548. 

Congenital  tendencies,  environment 
may  overcome,  63. 

Convicts,  rep>aration  to  man  unjustly 
convicted,  452. 

Corporal  punishment,  discouraged,  506. 

Craniological  data  inferior  in  form  of 
skull  in  murderers  and  thieves,  48. 

Crime,  abnormal  act,  103;  abnormality 
afiFecting,  116;  abolition  of  certain, 
454;  abstract  study  useless,  13;  ac- 
countability of  criminal,  365;  actual 
increase,  185;  alcohol  related  to, 
256,  257,  258;  annual  variations, 
209;  anthropological  factors,  186; 
Bahar's  definition,  83;  biological 
bases,  84;  complete  suppression  un- 
attainable, 385;  complex  origin  and 
nature,  115;  connotation  changes, 
75;  criminal  traits  do  not  always 
produce,  70;  damages  and  con- 
ditions of,  509;  definition  of,  74; 
diminution  object  of  positive  school, 
18;  drunkenness  the  cause  of,  253; 
Durkheim's  definition,  82;  ease 
affects,  181;  eclectic  definition,  82; 
economic  basis  of,  116;  education 
affects,  181;  evolution  of,  178; 
foodstuff's  price  causes  increase, 
246;  fundamental  basis  the  same, 
76;  impossibihty  of  complete  sup- 
pression, 24;  increase  in  serious 
crimes,  202;  judicial  repression,  217; 
juridical  entities  impossible,  12; 
l^islative  repression,  216;  leniency 
of  repression  218;  meat,  cereals 
and  wine  increase,  210;  moral 
prevention  of,  239;  nature  and 
origin  of,  100;  new  data  applied  to, 
436;  numerical  increase,  182;  origin 
of  value  as  basis  of  criminology,  562; 
pathological  nature  of,  285;  periodic 
movement  of,  195;  permanent  in- 
crease, 198;  phenomenon  of  biologico- 
social  abnormaUty,  122;  physical 
factors,  187;  prevention  and  repres- 
sion, 278;  prevention  better  than 
punishment,  225;  preventive  means. 


25;  prognostication  impossible.  213 
punishment  does  not  diminish,  38 
ratio  of  civil  and  penal  justice,  188 
regularity  of,  212;  reparation  to 
victims  of,  269;  repressive  forces, 
279;  severity  of  repression,  218; 
social  factors,  187;  social  prevention, 
664;  social  prevention  effective,  278; 
social  progress  prevents,  281;  social 
sanction  relating  to,  345;  sociological 
bases,  84;  sociological  definition,  80; 
table  showing  increase,  200;  table 
showing  increase  in  serious  crimes, 
204;  table  showing  source  of,  102; 
table  showing  unknown  perpetrators, 
222;  impunished  crimes  cause  in- 
crease, 221;  vagabondage  increases, 
261;  variation  among  social  groups, 
104. 

Crimes,  against  property,  recidivity, 
133;   social  factors  predominate,  74. 

Crimes  against  the  person,  recidivity, 
132. 

Criminals,  abnormal  men,  88;  accumu- 
lation of  criminal  traits  necessary  to 
mark,  69;  anatomical  characteristics, 
94;  anthropological  or  professional, 
92;  circumstances  restraining,  70; 
criminal  insensibiUty,  49;  differ 
from  other  men,  14;  eclectic  type 
non-existence,  388;  face  large  in,  67; 
five  categories,  159;  heredity  and 
environment,  involuntary  tendencies, 
99;  inexactness  of  comparison,  55; 
lack  of  foresight,  49;  method  of 
study  of,  52;  moral  insensibiUty, 
49;  natural  characteristics,  88;  or- 
ganic constitution,  186;  outdoor 
work  as  a  cure,  543;  passion  pro- 
ducing, 152;  personal  characteristics, 
187;  psychological  study  of,  10,  53; 
physical  data,  49;  psychical  constitu- 
tion, 186;  pubUc  defense  of,  471; 
saturation  law  of,  209;  scientific 
study  of,  10;  self-indulgence,  50; 
separation  of,  350;  social  accounta- 
biUty  of,  432;  thirty  per  cent  pun- 
ished, 15;  women  less  frequent  than 
men,  64,  65. 


INDEX 


573 


Criminal  action,  individual  first  forma, 
451;  individual  second  forms,  524. 

Criminal  Anthropology,  objections  to, 
52;  proper  subject  of,  79. 

Criminal  evidence,  data  derived  from, 
469;  phases  of,  464;  use  in  criminal 
biology,  470. 

Criminal  Insane,  discussion  of,  139. 

Criminality,  anthropological  forms,  86; 
anti-human  distinction,  85;  anti- 
social distinction,  85;  bom  criminal 
category,  144;  classification  of,  125; 
conditions  of,  421;  connotation  does 
not  change,  75;  five  categories,  138; 
forms  distinguished,  336;  physiog- 
nomy, 87;  prevention  of  crime  as 
duty,  283;  state  of,  404. 

Criminal  justice,  impersonality  of,  456. 

Criminal  Law,  definition  of,  328,  329; 
denial  of  moral  liberty  affects,  308; 
entity  theory  wrong,  12;  evolution 
applied  to,  36;  existence  of  too 
many  laws,  437;  legislative  reforms, 
441;  moral  freedom  does  not  sustain, 
305;  positive  method,  7;  positive 
school  of,  1;  prevention  the  object 
of,  230;  relations  to  civil  law,  413; 
science  to  Umit,  337. 

Criminal  Lunatic  Asylums,  discharges 
from,  524;  expense,  522;  inade- 
quacies, 523;  necessity  of,  521; 
objections  to,  522. 

Criminal  Sociology,  illustrations  of 
applications,  559,  560;  origin  of,  1; 
practical  reforms,  436;  programme 
of,  36;  relating  to  criminal  law  and 
politics,  556. 

Criminal  statistics,  biological  aspect  of, 
174;  data  of,  168  et  seq.;  ethico- 
social  inductions,  173;  methods  of 
collecting,  168;   use  and  abuse,  171. 

Criminals  through  passion,  impunity 
of,  553. 

Criminal  traits,  hereditary  transmission 
of,  95. 

Criminal  type,  objections  to  determina- 
tion, 88. 

Criminologists,  illustration  of  applica- 
tions, 559. 


Criminology,  classification  doctrines 
fail,  14;  origin  of  crime  as  basis,  562; 
pathological  impulses  of,  564. 

Criminaloids,  perversity  lacking,  157. 

Crofton,  discussion  of  system,  541. 

D 

Data  of  Anthropology,  explanation  of 
disagreement,  62. 

Deductive  method,  criminal  law  must 
use,  24. 

Defective  nutrition,  crime  proceeding 
from,  110. 

Defense  of  society,  conclusion  of  names, 
422;  definition  of  reason  of,  326; 
discussion  of  reaction,  314,  315; 
eliminative  means,  419;  evolution 
of,  311;  four  classes  of  defensive 
measures,  415;  fundamental  criteria 
of,  502;  moral  Uberty  not  involved 
in  penal  evolution,  321;  objections 
to  theory  of,  323;  objections  to  theory 
of  defensive  justice,  325;  penal  law 
development  toward,  320;  positive 
means  of,  414;  reparation  does  not 
constitute,  323;  repressive  means 
failure,  498;  vengeance  and  hate 
eliminated  from,  564. 

Degeneracy,  alcohol  causes,  254;  de- 
linquency proceeding  from,  108. 

Delinquency,  abnormality  as  origin  of, 
105;  biological  abnormality  as  basis 
of,  110;  cause  must  be  sought,  127; 
habitual  and  occasional,  127. 

Delinquents,  abnormal  men,  38;  an- 
thropological type,  100;  biological 
typ)e,  100;  choice  of  defensive  means 
for  different  categories,  515;  prisons 
should  be  hospital  for,  518;  three 
sociological  strata,  226;  treatment 
by  outdoor  life  and  work,  544;  wise 
treatment  of,  435. 

Deportation  for  life,  failure  as  a  punish- 
ment, 534. 

Discharges,  surveillance  of  prisoner's 
discharge,  460. 

Dominant  Class,  influence  in  defensive 
law,  333. 


574 


INDEX 


Drunkards,  children  degenerate,  275. 
Drunkenness,    coffee   diminishes,    253; 

crime  increased  by,  253;    degeneracy 

from,  253. 

E 

Education,  crime  prevented  by,  272. 
Electricity,  punishment  by,  505. 
Ellebo,  method  appUed  to  protection, 

466. 
Ebnira     Reformatory,     correction     of 

criminals,  276. 
Emigration,  crime  increased  by,  247. 
Epilepsy,  crime  proceeding  from,  106. 
Ethnic  traits,   permanent  as  affecting 

criminality,  66. 
Etiology,  criminal,  100. 
Europe,  juries  not  adapted  to,  491. 
Experts,  vicious  use  of,  470. 


Facial    development,     decreases    with 

intelligence,  67. 
Fanning  colonies,  outdoor  work  as  a 

cure,  543. 
Fatalism,  free  will  denied  not  fatalistic, 

303. 
Fiscal     charges,     alcohol     and     crime 

remedied  by,  255. 
Five  categories  of  Criminals,  numerical 

proportions,  159. 
Five  classes,   Colajanni   accepts,    163; 

discretion  of,  164  et  seq.;   Lombroso 

accepts,  163. 
Foodstuffs,  crime  increased  by  rise  in 

prices,  246. 
Forgery,  prevention  of,  270. 
Freedom  of  Action,  environment  limits, 

293;   heredity  Umits,  293. 
Freedom  of  Intelligence,  theories  of,  374. 
Freedom  of  Will,  eclectic  theories,  367; 

Umited  freedom  denied,  297. 
Free  Will,   autonomous  being  denied, 

295;    determinative  motives  hard  to 

prove,  428;    determining  motives  of 

action,  423;   failure  of  as  a  defense, 

427;     Grote's    theory    denied,    296; 

illusions  as  to,  38;   justice  without. 


413;  n^ation  of,  288;  non-existence 
of,  57;    objections  to  negation,  322; 
problem  of  justice  without,  405. 
Frontal  protuberance,  responsibility  at 
him  who  has  it,  47. 


Gambling,  suppression  to  prevent  crime, 

273. 
Gabofalo,  works  of,  7. 
Gneist,  theory  of,  450. 
Guilty,  presumption  of,  445. 
GxjTAU,  criticism  of  theory,  400. 

H 

Habitual  Criminal,  traits  of,  146. 
Habitual  Criminals,  classification,  545. 
Habitual  Delinquency,  large  proportion 

of,  133. 
Habitual  Delinquents,  category  of,  145. 
Heredity,  law  manifested  by  tendency, 

98;    transmission  of  criminal  traits, 

95. 
Holidays,  crime  produced  by,  273. 
Homicide,    criminals    through    passion 

generally  commit,  153. 
Howard,  criticism  of  doctrine,  5,  6; 

penitentiary  school  of,  5. 
Human  mind,  indivisibility  of,  295. 


Ideal  liberty,  eclectic  theories,  368. 
Improvidence,  criminal  characteristics, 

64. 
Imputability,  resjKjnsibility  related  to, 

362. 
Incorrigibles,  treatment  of,  536. 
IncorrigibiUty,  persistence  of,  127. 
Indeterminate  sentence,  good  results  of, 

507. 
Individual  rights,  equality  with  social 

defense,  446. 
Individualism,   exaggerated   tenets   erf, 

444. 
Inheritance,     murder     prevented     by 

testamentary  regulations,  267. 


INDEX 


575 


Inhibitive  centers,  defective  develop- 
ment leading  to  crime,  110. 

Innocence,  presumption  of,  445. 

Inisane,  categories  of  semi-insane  crim- 
inality, 142;  criminals  and  non- 
criminals,  386;  determinative 
motives  as  applied  to,  426;  responsi- 
bility in  crime,  357. 

Insanity,  history  or  treatment  of,  356; 
moral  insanity,  359. 

Intimidation,  effect  on  weak  minds, 
882;  theory  means,  387. 


Judiciary,  independence  in  criminal 
cases,  474;  numbers  of  judges  neces- 
sary, 475;  professional  judges  ten- 
dency to  convict,  490;  qualifications 
in  criminal  cases,  476. 

Juries,  abolition  necessary,  495;  aboli- 
tion of,  479;  advantages  and  disad- 
vantages, 481;  arguments  in  favor 
of,  479;  disadvantages  of,  490; 
English  and  Continental  distin- 
guished, 392;  Europe  not  adapted 
to,  491;  evolution  to  the  present 
time,  493;  failure  of  justice  through, 
486;  incoherency  of  action  of,  487; 
institutional  value,  482;  personal 
capacity,  485;  psychological  con- 
stitution, 489;  preservation  neces- 
sary, 497;  sociological  constitution, 
489;  specialization  of  functions 
lacking,  494;  value  of  institution, 
479. 

Jurisprudence,  moral  freedom  theory 
hindrance,  307. 

Jury  system,  see  Juries. 

Justice,  definition  of,  331;  exigencies 
of  the  idea,  373;  free  will  not  neces- 
sary to,  406. 


Law,  coercive  authority  of,  331;  evolu- 
tionary phases  of,  317;  sanction  of, 
330;    social  phase  of  evolution,  318. 

Law  of  numbers,  deduction  as  to 
criminals  not  dependent  on,  54. 


Legal  sanction,  definition  of,  331. 
Liberty,  equivocal  meaning  of,  301. 
Life  imprisonment,  plan  of,  539. 
Liszt,  criticism  of  theory,  394;   theory 

of,  393. 
LoMBHOSO,     distinction     of     criminal 

categories  prior  to,  125. 

M 

"Mala  in  se,"  distinction  from  "mala 

prohibita,"  77. 
"Mala    prohibita,"     distinction    from 

"mala  in  se,"  77. 
Malefactor,  distinction  of,  531. 
Mattoide,  criminaUty  categories,   142. 
Memory,  non-existence  of,  295. 
Moral  conduct,  organic  conditions  in- 
volve, 58. 
Moral  culpability,   crime  independent 

of,   345;    defense  of  society  means 

what,     351;      social     accoiuitability 

preferable  to,  352. 
Moral  freedom,  limited  freedom  laws, 

303. 
Moral  insanity,  recognition  of,  359. 
Morality,  penal  lack  of  recognition,  316. 
Moral  liberty,  equivocal  meanings,  299; 

existence  of,  289;    non-existence  of, 

292;   play  on  words,  299. 
Moral  responsibility,   puni-shment  not 

based  on,  339. 
Motives,    science    of    motives    denied, 

425. 
Murderers,     craniological     data,     48; 

distinction    between    character    of, 

60;  fierce  expression  of,  93. 

N 

Neglected  childhood,  remedy  in  social 
reorganization,  276. 

Neglected  children,  nourishment  pre- 
vents degeneracy,  273. 

O 

Occasional  criminals,  short  term  sen- 
tence, 545. 
Occasional  delinquents,  category,  154. 


576 


INDEX 


Pardons,  abuse  of,  448. 

Penal  judgment,  judicial  licenses,  457; 
lack  of  organization,  459;  mani- 
festations of,  461;  proper  fimction 
of,  462. 

Penal  justice,  character  of  machinery 
and  penal  justice  characters,  456; 
history  of  development,  318,  319; 
machinery  of,  456. 

Penal  law,  advance  or  tendency  of, 
320;  criminal  sociology  related  to, 
556;  moral  Uberty  unconnected 
with,  321;  positive  basis  of,  342; 
self-defense  of  society,  38. 

Penal  Laws,  criminal  sociology  influ- 
ences, 436. 

Penal  procedure,  future  of,  565. 

Penal  process,  capacity  of  judiciary, 
473;  detection  of  criminal,  465; 
judiciary,  472. 

Penal  responsibility,  problem  of,  288; 
fundamental  problems,  410. 

Penal  science,  future  of,  555. 

Penal  System,  existing  systems  value- 
less, 499;  bankruptcy  of,  498. 

Penalties,  inequahties,  81;  positive 
theory  of,  288;  repressive  forces  of, 
236;  segregation  of,  502;  substitutes, 
243;  substitutes  of  no  importance, 
282;  table  showing  system  of,  500. 

Penitentiaries,  science  of  certain,  517. 

Penitentiary  system,  vices  of,  3. 

Personal  identity,  theory  of,  401. 

Phrenology,  crime  studied  by,  41. 

Physiognomy,  crime  studied  by,  41. 

Piracy,  steam  causes  disappearance  of, 
267. 

PoLETTi,  criticism  of  theory,  392; 
theories  of  responsibihty,  390. 

PoUce,  public  and  social  defense,  450. 

Political  order,  crime  regulated  by,  265. 

Population,  increase  brings  more  crime, 
206. 

Positive  school,  practical  applications 
of,  33;  programme  of,  18. 

Poverty,  crime  increased  by,  254;  fines 
should  be  remitted  in  case  of,  279. 


Practical  freedom,  eclectic  premises  of 
responsibihty,  371. 

Practical  reform,  summary  of,  554. 

Precocity,  index  of  born  criminality, 
150;  mark  of  congenital  tendency, 
151. 

Prevention,  means  of,  410. 

Prevention  of  crime,  science  lacking, 
283. 

Prisons,  easy  life  to  be  avoided,  519; 
hospital  system  necessary,  518;  work 
necessary  in,  520. 

Procedural  reform,  principles  of,  442; 
three  general  principles  of  positivist 
school,  442. 

Pseudo-criminals,  perversity  lacking, 
157. 

Public  improvements,  crime  decreased 
by,  248. 

PunishabiUty,  eclectic  theories  of,  366. 

Punishment,  basis  of  right,  289;  360; 
certainty  aids  efficiency,  237;  crime 
not  prevented  by,  214;  criteria  to 
determine,  421;  deportation  for  life, 
534;  equivalents  of,  242;  equivalents 
useless,  245;  evidence  has  no  part 
in,  464;  fimdamental  reason  for 
right,  23;  history  of,  231;  ineffective, 
16;  legal  responsibihty,  340;  nega- 
tive repressive  force,  240;  permanent 
punishment  criticized,  533;  physical 
imputability  necessary,  339;  practi- 
cal reforms  in,  508;  preventive  effect 
limited,  228;  reparation  in  damages, 
509;  summary  of,  236;  table  ol 
theories,  367. 


Recidivists,  statistics  showing  relapses, 

131. 
Recidivity,  statistics  of,  129. 
Rehgion,     corrupt     religion     produces 

crime,     271;      luxury     of     churches 

produces  crime,  271;    slight  obstacle 

to  crime,  271. 
Repression,  efficacy  of,  233. 
Responsibihty,  basis  of,  309;    eclectic 

theories,     364,     367;      fundamental 


INDEX 


577 


principle    applied    to    crime,    407; 
history    determines    basis    of,    SIO; 
imputability  necessary,  362. 
Rights,  development  of,  366. 


SaIiEIUjES,  criticism  of,  516. 

Sanction,  forms  of,  331. 

Sanctions,  biological,  343;  coercive, 
344;  physical,  343;  social,  343. 

Scientific  order,  crime  repression  by, 
266. 

Segregation,  indeterminate,  537. 

Semi-insane,  treatment  of,  525. 

Severity,  crime  increased  by,  234. 

Short  Term  Sentence,  failure  and  ob- 
servations of,  550;  substitutes  for, 
546. 

Skull,  face  relatively  large  in  criminals, 
67. 

Smuggling,  duties  less  decrease,  247. 

Social  accountability,  moral  responsi- 
bility gives  way  to,  352. 

Social  defense,  preventive  means,  416; 
reparative  means,  417;  repressive 
means,  419;  summary  of  methods, 
420. 

Social  friction,  crime  unavoidable,  280. 

Social  sanctions,  kinds  of,  344. 

Social  sciences,  positive  method,  11. 

Social  selection,  description  of,  349. 

Social  similarity,  theory  of,  402. 

Socialism,  scientific  theories,  334. 

Sociological  definition  of  crime,  criti- 
cisms, 80  et  seq. 


Tarde,  criticism  of  theory  of,  398; 
statement  or  manner  of,  396;  theory 
of,  395. 

Technical  damages,  fear  of,  610. 

Temperature,  crime  increased  by,  211. 

Thieves,  craniological  data,  48;  repug- 
nance to  bloodshed,  91. 

Ticket  of  leave,  English  plan,  541. 

Track  exercise,  well  developed  lungs 
favors,  59. 

Trials,  penal  process,  471;  public  ad- 
vertisement necessary,  471. 

Tribunals,  habitual  delinquency,  136. 


Vagabondage,  crime  increased  by,  255; 
history  of,  262,  263. 

Vagabonds,  children  degenerate,  275. 

Vanity,  criminal  characteristics,  64. 

Verdict,  publicity  the  means  of  reach- 
ing, 465. 

Verdicts,  guilty,  447;  not  guilty,  447; 
not  proven,  446;  Roman,  447. 

Victim  of  crime,  remedy  found  in  repa- 
ration to,  269. 

Voluntarianism,  acts  existence  doubted, 
378. 


W 

Wine,  crime  increased  by,  210. 
Women,     biological     factors     of,     65; 
criminality  less  frequent  among,  64. 


a^^^.^^  ^l 


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